In her appeal against the South Gauteng High Court judgment, Ms Dlamini-Zuma said the court failed to take relevant factors into account in circumstances where it ought to have done so. The court found that SA may not extradite suspects to a country where they might face the death penalty unless that country has given an assurance that they would not be sentenced to death.

The appeal will be heard in the Constitutional Court next month.

Whether SA can extradite a person to another country without an assurance that the penalty would not be death was believed to have been settled in law after the Constitutional Court ruled in the Mohamed case in 2001. The court found there was an absolute obligation on SA to obtain an assurance the death penalty would not be imposed before it extradit ed a person to a state to be charged with a capital offence.

In the coming case, home affairs had sought in 2010 to extradite Emmanuel Tsebe and Jerry Phale, who were charged with murder in Botswana but who had escaped to SA. Mr Tsebe died before the application against his deportation could be heard. The high court ruled that the extradition of Mr Phale to Botswana was unconstitutional without a no-death-penalty assurance from Botswana.

In her arguments before the Constitutional Court, the minister said the precedent set by the judgments of Mohamed and Phale drastically affected her ability to develop and implement national policy that was aligned to building sound relations with other southern African governments that had not abolished the death penalty.

SA and other regional countries have signed the Southern African Development Community (Sadc) Protocol on Extradition.

"The intention of the Sadc protocol is, inter alia, aimed at an integrated regional effort to promote crime-prevention strategies, suppress crime and avoid the creation of safe havens within the Sadc region," said the minister's advocate, Marumo Moerane SC.

He said the deportation of Mr Phale was premised on his status in SA as an illegal foreigner, a fugitive from justice and a person SA would not wish to admit into the country.

However, counsel for Mr Tsebe and Mr Phale said the Mohamed case was directly applicable to the facts of the current case. "Mohamed makes it clear that South African authorities are under an absolute obligation to obtain the requisite assurance before surrendering individuals to states where they are accused of capital offences and (are) thus at risk of being subjected to the death penalty," the advocate for the two, Anton Katz SC, said.

"This applies regardless of whether the removal is by way of extradition or deportation," said Mr Katz in written argument.

Ernest Mabuza

Business Day