Constitutional Court of South Africa: Samuel Kaunda and Others V. President of the Republic of South Africa and Others*

doi:10.1017/S0020782900008032

1 Details of the charges are referred to in para 12 below. In the High Court there were 70 applicants, but on 5 July 2004, Simon Francis Mann, the sixty-ninth applicant in the High Court, lodged a notice of withdrawal from the proceedings in this Court.

2 Member of the Executive Council for Development Planning and Local Government, Gauteng v Democratic Party and Others 1998 (4) SA 1157 (CC); 1998 (7) BCLR 855 (CC) at para 32.

3 Barcelona Traction Light and Power Company Limited 1970 ICJ Reports 3; 46 ILR 178.

4 Id at paras 78-9.

5 Report of the International Law Commission on the work of its fifty-second session, 1 May to 9 June and 10 July to 18 August (2000) A/55/10 (ILC report). The full report of the Special Rapporteur is published as a General Assembly document, A/CN.4/506 (Special Rapporteur's report).

6 Special Rapporteur's report above n 5 at 11.

7 Dunn The Protection of Nationals: A Study in the Application of International Law (Johns Hopkins Press, Baltimore 1932) at 18.

8 ILC report above n 5 at 146.

9 Special Rapporteur's report above n 5 at 15.

10 Above n 3.

11 See Carmichele v Minister of Safety and Security and Another (Centre for Applied Legal Studies intervening) 2001 (4) SA 938 (CC); 2001 (10) BCLR 995 (CC) at para 44; Mohamed and Another v President of the Republic of South Africa and Others (Society for the Abolition of the Death Penalty in South Africa and Another intervening) 2001 (3) SA 893 (CC); 2001 (7) BCLR 685 (CC) at para 37; Government of the Republic of South Africa and Others v Grootboom and Others 2001 (1) SA 46 (CC); 2000 (11) BCLR 1169 (CC) at para 20; S v Baloyi (Minister of Justice and Another intervening) 2000 (2) SA 425 (CC); 2000 (1) BCLR 86 (CC) at para 11.

12 See para 44 below

13 African Charter on Human and Peoples’ Rights adopted by the Organisation of African Unity at the 18th Conference of Heads of State and Government on 27 June 1981, Nairobi, Kenya. Entry into force: 21 October 1986.

14 International Covenant on Civil and Political Rights adopted and opened for signature, ratification and accession by the General Assembly of the United Nations, resolution 2200 (XXI) of 16 December 1966. Entry into force: 23 March 1976.

15 1996 (2) SA 751 (CC); 1996 (4) BCLR 449 (CC).

16 Id at para 106.

17 Cf DU Plessis and Others v De Klerk and Another 1996 (3) SA 850 (CC); 1996 (5) BCLR 658 (CC) at para 45.

18 Brownlie Principles of Public International Law 6 ed (Oxford University Press, Oxford 2003) at 287 and 289.

19 Dugard International Law: A South African Perspective 2 ed (Juta, Cape Town 2000) at 133.

20 Island of Palmas Case (Netherlands v United States) 2 RIAA 829 (1928) at 838.

21 The Case of the 5.5. Lotus (France v Turkey) (1927) PCIJ Series A, No. 10.

22 Id at paras 18-19.

23 Brownlie above n 18 at 301.

24 Shaw International Law 4 ed (Cambridge University Press, Cambridge 1997) at 460-1.

25 Id at 461.

26 [1998] 2 SCR 597.

27 Id at para 26.

28 Id at para 46.

29 Id at para 91.

30 Id at para 124.

31 Where there are formal agreements or informal acts of cooperation between states which sanction the one state's exercise of jurisdiction in the territory of the other, questions of sovereignty do not arise and thus nationals affected by their state's action in a foreign territory may conceivably invoke the protection of their Constitution—See in this regard the case of Reid v Covert 354 US 1 (1957).

32 The difficulties are illustrated by decisions in a number of Canadian cases in which different approaches have been adopted by the judges dealing with them. See for instance, R v Cook above n 26 and the cases there referred to.

33 Mohamed above n1l.

34 Id at para 60.

35 Id at para 70.

36 Id at para 71 (footnote omitted).

37 Id at para 62.

38 Id at para 67.

39 See para 90 below.

40 United States v Burns [2001] 1 SCR 283 at para 72.

41 “There can be no doubt that the actions undertaken by the Government of Canada in extradition as in other matters are subject to scrutiny under the Charter (s. 32). Equally, though, there cannot be any doubt that the Charter does not govern the actions of a foreign country; see, for example, Spencer v The Queen [1985] 2 SCR 278. In particular the Charter cannot be given extraterritorial effect to govern how criminal proceedings in a foreign country are to be conducted.“—Canada v Schmidt [1987] 1 SCR 500 at 518.

42 ”When an American citizen commits a crime in a foreign country he cannot complain if required to submit to such modes of trial and to such punishment as the laws of that country may prescribe for its own people, unless a different mode be provided for by treaty stipulations between that country and the United States.“—Neely v Henkel (No. 1) 180 US 109 (1901) at 123 cited with approval in Canada v Schmidt above n 41 at 525

43 Erasmus ' Davidson “Do South Africans have a right to diplomatic protection?” (2000) 25 SA Yearbook of International Law 113.

44 Id at 116 where the authors refer to a decision of a mixed claims commission between the United States and Germany where it was pointed out that there would be no action unless the injured national requests the state to act on its behalf—Administrative Decision No 5 (United States v Germany) (1924) 7 RIAA 119 as cited by Harris Cases and Materials on International Law 5 ed (Sweet ' Maxwell, London 1998) at 521.

45 South African Citizenship Act 88 of 1995.

46 Nottebohm Case (Liechtenstein v Guatemala) 22 ILR 349 at 360.

47 The Special Rapporteur's report (above n 5 at 12-13) highlights the controversy regarding the question of whose rights are asserted when a state exercises diplomatic protection on behalf of its national. Erasmus ' Davidson also discuss this issue in their article (above n 43 at 116-7). In recent proceedings before the ICJ, South Africa adopted the attitude that the true beneficiary of the right asserted is the individual. In its written submissions to the Court, South Africa outlined its position as follows: “the locus of international] human rights vests in the individual and not the Government” and the individual is “the beneficiary of at least a core of human rights and the protection so afforded”. See page 22 of the written submissions submitted by the Government of the Republic of South Africa on 30 January 2004 to the ICJ in the matter of the request by the United Nations General Assembly for an Advisory Opinion on the legal consequences of the wall being built by Israel.

48 Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and Others 1999 (1) SA 374 (CC); 1998 (12) BCLR 1458 (CC) at para 56.

49 See para 70 below.

50 Special Rapporteur's report above n 5 at 32.

51 ILC report above n 5 at 156.

52 Hess decision BVerfGE 55, 349; 90 ILR 386 where the Federal Constitutional Court held that “the Federal Government enjoys wide discretion in deciding the question of whether and in what manner to grant protection against foreign States“—at 395.

53 Id at 396.

54 Abbasi and Another v Secretary of State for Foreign and Commonwealth Affairs and Another [2002] EWCA Civ 1598.

55 Id at para 106 iv-v.

56 President of the Republic of South Africa and Another v Hugo 1997 (4) SA 1 (CC); 1997 (6) BCLR 708 (CC) at para 13.

57 President of the Republic of South Africa and Others v South African Rugby Football Union and Others 2000 (1) SA 1 (CC); 1999 (10) BCLR 1059 (CC) at para 38.

58 Pharmaceutical Manufacturers Association ofSA and Another: In re Ex parte President of the Republic of South Africa and Others 2000 (2) SA 674 (CC); 2000 (3) BCLR 241 (CC) at para 90.

59 Section 179(l)(a) read with section 179(2) of the Constitution.

60 Section 179(6) of the Constitution.

61 Section 179(4) of the Constitution.

62 Act 3 of 2000.

63 Id section l(b)(ff).

64 As to the position prior to the Promotion of Administrative Justice Act, see: Gillingham v Attorney-General and Others 1909 TS 572; Wronsky en ‘n Ander v Prokureur-Generaal 1971 (3) SA 292 (SWA); Highstead Entertainment (Pty) Ltd v Minister of Law and Order 1994 (1) SA 387 (C) at 394H where it is said that courts would be slow to interfere with such decisions. This is similar to the approach taken in the United Kingdom where courts have held that there is a power to review a decision not to prosecute, but it is a power that has to be “sparingly exercised“—Rv Director of Public Prosecutions, ex parte C [1995] 1 Cr. App. R. 136 at 140.

65 Act 15 of 1998.

66 Id. As defined in paragraph (c) of the definition of foreign military assistance in section 1.

67 Section 16 of the Zimbabwe Extradition Act provides:“(1) Subject to section twenty-four, a request for extradition to a designated country in terms of this Part shall be submitted through channels to the Minister and shall be accompanied by—(a) a warrant for the arrest of the person concerned specifying and giving particulars of the offence in respect of which his extradition is sought; and(b) such evidence as would establish a prima facie case in a court of law in Zimbabwe that the person concerned has committed or has been convicted of the offence concerned in the designated country: Provided that, if the order declaring the country concerned to be a designated country in terms of section thirteen so provides, the request may be accompanied by a record of the case in respect of the offence concerned, containing the particulars and documents referred to in subsection (2),and accompanied by—(i) an affidavit, sworn statement or affirmation of an officer of the investigating authority of the designated country stating that the record was prepared by him or under his direction and that the evidence referred to therein has been preserved for use in court; and(ii) a certificate of the Attorney-General of the designated country stating that, in his opinion, the record discloses the existence of evidence under the law of the designated country sufficient to justify a prosecution”

68 As defined in paragraph (b) of the definition of foreign military assistance in section 1 of Act 15 of 1998.

69 Section 14 of the Zimbabwe Extradition Act provides:“(1) Subject to this Act, a person may be arrested, detained and extradited from Zimbabwe to a designated country in the manner provided for in this Part, for an offence in respect of which in the designated country he is accused or has been convicted and is required to be sentenced or to undergo punishment, whether the offence was committed before or after the declaration of the country concerned as a designated country.(2)This Part shall apply to any offence which—(a) This punishable in the law of the designated country concerned by imprisonment for a period of twelve months or by any more severe punishment; and (b)would constitute an offence punishable in Zimbabwe if the act or omission constituting the offence took place in Zimbabwe or, in the case of an extra-territorial offence, in corresponding circumstances outside Zimbabwe.”

70 S v Makwanyane and Another 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC).

71 See the discussion of this in Mohamed above n 11 at para 39 and Burns above n 40 at paras 85-92.

72 See above para 57.

73 Above n11.

74 See above paras 46-57.

75 Above n 5 at 147.

76 See International Tobacco Co (SA) Ltd v United Tobacco Cos (South) Ltd 1953 (3) SA 343 (W) at 346B.

77 Above n 41.

78 Above n 42.

79 In the case of Öcalan v Turkey Application 46221/99, 12 March 2003, the European Court of Human Rights held the following at para 207: “[T]o impose a death sentence on a person after an unfair trial is to subject that person wrongfully to the fear that he will be executed. The fear and uncertainty as to the future generated by a sentence of death, in circumstances where there exists a real possibility that the sentence will be enforced, must give rise to a significant degree of human anguish. Such anguish cannot be dissociated from the unfairness of the proceedings underlying the sentence”.

80 Above n 52.

81 Id at 395.

82 The International Law Commission has described diplomatic protection to mean “action taken by a State against another State in respect of an injury to the person or property of a national caused by an internationally wrongful act or omission attributable to the latter State” (see article 1 of the draft articles contained in the “First report on diplomatic protection” by John R Dugard, Special Rapporteur, 7 March 2000, published as a General Assembly document, A/CN.4/506 at 11 (Special Rapporteur's Report)). The Encyclopaedia of Public International Law gives a substantially similar definition of diplomatic protection and defines it as ‘ ‘the protection given by a subject of international law to individuals, i.e. natural or legal persons, against a violation of international law by another subject of international law” (Dugard at 14, citing Geek “Diplomatic Protection” Encyclopaedia of Public International Law (1992) at 1046). For the purpose of this judgment I will use the term diplomatic protection to refer to the diplomatic intervention by a state to protect its nationals against a violation or threatened violation of the internationally recognised human rights of its nationals.

83 Countries that have constitutionalised the duty to provide diplomatic protection include Albania, Belarus, Bosnia and Herzegovina, Bulgaria, Cambodia, China, Croatia, Estonia, Georgia, Guyana, Hungary, Italy, Kazakhstan, Lao People's Democratic Republic, Latvia, Lithuania, Poland, Portugal, Republic of Korea, Romania, Russian Federation, Spain, the former Yugoslav Republic of Macedonia, Turkey, Ukraine, Vietnam and Yugoslavia. The Special Rapporteur's Report above n 1 at 30.

84 Barcelona Traction Light and Power Company Limited 1970 ICJ Reports 3; 46 ILR 178 at paras 78-9.

85 See paras 174-179 for further discussion of these sections.

86 S v Makwanyane and Another 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC) at para 262.

87 Preamble to the Constitution. See also Bato Star Fishing (Pty) LtdvMinister of Environmental Affairs and Tourism and Others 2004 (7) BCLR 687 (CC) at para 73: “South Africa is a country in transition. It is a transition from a society based on inequality to one based on equality. This transition was introduced by the interim Constitution, which was designed/to create a new order based on equality in which there is equality between men and women and people of all races so that all citizens should be able to enjoy and exercise their fundamental rights and freedoms.’ This commitment to the transformation of our society was affirmed and reinforced in 1997, when the Constitution came into force. The Preamble to the Constitution/recognises the injustices of our past’ and makes a commitment to establishing/a society based on democratic values, social justice and fundamental rights'. This society is to be built on the foundation of the values entrenched in the very first provision of the Constitution. These values include human dignity, the achievement of equality and the advancement of human rights and freedoms.“

88 Section l(a) of the Constitution.

89 Section 7(1) states: “This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom.“

90 African [Banjul] Charter on Human and Peoples’ Rights, adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 International Legal Materials 58 (1982), entered into force 21 October 1986.

91 International Covenant on Civil and Political Rights, G.A.res. 2200A (XXI), 21 U.N.Gaor Supp. (No 16) at 52, U.N. Doc. A/ 6316 (1966), 999 U.N.T.S. 171, entered into force on 23 March 1976.

92 Above n 86 at para 144.

93 See paras 198-202 and 207-208 which discuss state policy.

94 See para 223 in the judgment of O’Regan J.

95 Article 1 of the African Charter states that: ‘ ‘The Member States of the Organization of African Unity parties to the present Charter shall recognise the rights, duties and freedoms enshrined in this Chapter and shall undertake to adopt legislative or other measuresto give effect to them.” Zimbabwe and Equatorial Guinea have also ratified the African Charter.

96 Id at Preamble.

97 Above n 91 article 9.

98 Id article 7.

99 Zimbabwe did not ratify the ICCPR but there was an accession on 31 August 1991. Equatorial Guinea also submitted to an accession on 25 December 1987. Zimbabwe ratified the African Charter on 30 May 1986 and Equatorial Guinea ratified it on 7 April 1986.

100 Thus under the African Charter, the government is entitled to take action against another state party where it has reason to believe that that State has violated a provision of the African Charter. Article 47 provides: ‘ ‘If a State party to the present Charter has good reasons to believe that another State party to his Charter has violated the provisions of the Charter, it may draw, by written communication, the attention of the State to the matter. This communication shall also be addressed to the Secretary General of the OAU and to the Chairman of the Commission. Within three months of the receipt of the communication, the State to which the communication is addressed shall give the enquiring State, written explanation or statement elucidating the matter. This should include as much as possible relevant information relating to the laws and rules of procedure applied and applicable, and the redress already given or course of action available.” Article 49 provides: “Notwithstanding the provisions of 47, if a State party to the present Charter considers that another State party has violated the provisions of the Charter, it may refer the matter directly to the Commission by addressing a communication to the Chairman, to the Secretary General of the Organization of African Unity and the State concerned.“

101 Written Statement Submitted by the Government of the Republic of South Africa, on 30 January 2004, to the International Court of Justice in the matter of the request by the United Nations General Assembly for an Advisory Opinion on the legal consequences of the construction of a wall in the occupied Palestinian territory.

102 See the Special Rapporteur's Report above n 1 at 10.

103 Id (footnote omitted).

104 Special Rapporteur's Report above n 1 at 30.

105 Abbasi and Another v Secretary of State for Foreign and Commonwealth Affairs and Another [2002] EWCA Civ 1598.

106 Above n 1 at 33 (footnotes omitted).

107 Section 20 provides: “No citizen may be deprived of citizenship.“

108 Pharmaceutical Manufacturers Association of SA and Another: In re Ex parte President of the Republic of South Africa and Others 2000 (2) SA 674 (CC); 2000 (3) BCLR 241 (CC) at para 51.

109 Section 21(3).

110 Section 21(4).

111 1998 (3) SA 785 (CC); 1998 (7) BCLR 779 (CC).

112 Id at para 31.

113 Erasmus ' Davidson “Do South Africans have a right to diplomatic protection?” (2000) 25 SA Yearbook of International Law 113.

114 See above n 26.

115 See in general Hopkins ‘ ‘Diplomatic Protection and The South African Constitution: Does a South African citizen have an enforceable constitutional claim against the government?” (2001) 16 SA Journal of Public Law 387.

116 See paras 198-204.

117 Hess decision BVerfge 55, 349; 90 ILR 386 at 395.

118 Above n 24 at para 106(iii).

119 Id

120 Hess above n 36.

121 Above n 24 at para 104.

122 Minister of Health and Others v Treatment Action Campaign and Others (No 2) 2002 (5) SA 721 (CC); 2002 (10) BCLR 1075 (CC) at para 99.

123 Above paras 160-161.

124 Above paras 174-179.

125 Customary international law constitutes those binding rules of international law which are “evidence of a general practice [of states] accepted as law”. (Article 38 of the Statute of the International Court of Justice). See the discussion in Brownlie Principles of Public International Law 6 ed (Oxford University Press, Oxford 2003) at 6-12.

126 See First Report of the Special Rapporteur on Diplomatic Protection to the International Commission of Jurists, International Law Commission, 52nd Session, 2000 (A/CN.4.506) at paras 33-34.

127 Geek “Diplomatic Protection” in Encyclopaedia of Public International Law (1992) at 1046, cited in the First Report of the Special Rapporteur on Diplomatic Protection above n 2 at para 38.

128 See the distinction drawn by Warbrick between diplomatic representations, on the one hand, and diplomatic protection, on the other. in “Diplomatic Representations and Diplomatic Protection” (2002) 51 International and Comparative Law Quarterly 723 at 724-5. See also article 5 of the Vienna Convention on Consular Relations which lists consular functions.

129 See the discussion in the First Report of the Special Rapporteur on Diplomatic Protection, above n 2 at paras 41 ff.

130 See Dunn The Protection of Nationals: A Study in the Application of International Law (Johns Hopkins Press, Baltimore 1932) at 18-20.

131 Barcelona Traction, Light and Power Company Limited Case 46 ILR 178 at paras 78-9.

132 Above n 2 at para 15.

133 Id at para 31. Perhaps the most effective international law remedies for the protection of international human rights norms are provided by regional human rights courts. A Protocol to the African Charter on Human and Peoples’ Rights establishing an African Court on Human and Peoples’ Rights entered into force on 25 January 2004 after receiving sufficient ratifications. The Court should, thus, be established shortly.

134 At least one commentator expressly states that diplomatic protection may be instituted in the face of the threatened infringementof human rights. See Dunn above n 6 at 18 where he states that “[Diplomatic protection] embraces generally all cases of official representation by one government on behalf of its citizens of their property interests within the jurisdiction of another, for the purpose, either of preventing some threatened injury in violation of international law, or of obtaining redress for such injuries after they have been sustained.“

135 See, for example, President of the Republic of South Africa and Another v Hugo 1997 (4) SA 1 (CC); 1997 (6) BCLR 708 (CO at paras 8-10, in which the Court held that the prerogative powers under previous constitutions were now those enumerated in our new Constitution; Pharmaceutical Manufacturers Association of South Africa: In re Ex pane the President of the RSA 2000 (2) SA 674 (CC); 2000 (3) BCLR 241 (CC) at para 19.

136 Section 2 of the Constitution.

137 Carmichele v Minister of Safety and Security and Another 2001 (4) SA 938 (CC); 2001 (10) BCLR 995 (CC) at para 54.

138 Section 7(2) of the Constitution.

139 2004 (7) BCLR 687 (CC) at para 73.

140 See also the judgment of Mahomed J in S v Makwanyane and Another 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC) at para 262.

141 Section 232 of the Constitution.

142 Section 39(1)(b) of the Constitution.

143 Section 233 of the Constitution.

144 Ratified on 10 December 1998.

145 Ratified on 10 December 1998.

146 Ratified on 15 December 1995.

147 Ratified on 10 December 1998.

148 Ratified on 16 June 1995.

149 Ratified on 9 July 1996.

150 These prayers sought the following: “6. Directing and ordering the Government to ensure as far as is reasonably possible, that the dignity of the applicants as guaranteed in section 9 of the Constitution of South Africa (the Constitution) are at all times respected and protected in Zimbabwe or Equatorial Guinea, as the case may be.7.Directing and ordering the Government to ensure as far as is reasonably possible, that the applicants’ right to freedom and security of person including the rights not to be subjected to torture or cruel, inhuman or degrading treatment or punishment, as guaranteed in section 12 of the Constitution, are at all times respected and protected in Zimbabwe or Equatorial Guinea, as the case may be. 8.Directing and ordering the Government to ensure as far as is reasonably possible, that the applicants’ right to fair detention and fair trial as guaranteed in section 35 of the Constitution are at all times respected and protected in Zimbabwe or Equatorial Guinea, as the case may be.

151 See, for example, The Case of the S. S. Lotus (1927) PCIJ Ser A, no 10 in which the International Court of Justice stated that: “Now the first and foremost restriction imposed by international law upon a State is that—failing the existence of a permissive rule to the contrary—it may not exercise its power in any form in the territory of another State. In this sense jurisdiction is certainly territorial; it cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international custom or convention. It does not, however, follow that international law prohibits a State from exercising jurisdiction in its own territory, in respect of any case which relates to acts which have taken place abroad, and in which it cannot rely on some permissive rule of international law.“

152 [1998] 2 SCR 597 at para 46.

153 At paras 142-144 of his judgment.

154 Section 8(1).

155 Section 7(2) of the Constitution.

156 See for example article 69(3) of the Hungarian Constitution which provides that: “Every Hungarian citizen is entitled to enjoy the protection of the Republic of Hungary, during his/her legal staying abroad”, as cited in Lee Consular Law and Practice 2 ed (Oxford University Press, Oxford 1991) at 125. The Special Rapporteur on Diplomatic Protection to the ICJ also mentions the Constitutions of Albania, Belarus, Bosnia and Herzegovina, Bulgaria, Cambodia, China, Croatia, Estonia, Georgia, Guyana, Italy, Kazakhstan, Lao People's Democratic Republic, Latvia, Lithuania, Poland, Portugal, Republic of Korea, Turkey, Ukraine, Vietnam and Yugoslavia. See First Report on Diplomatic Protection above n 2 at para 80.

157 Section 19.

158 Section 20.

159 Section 21(3).

160 Section 21(4).

161 Section 22.

162 1998 (3) SA 785 (CC); 1998 (7) BCLR 779 (CC).

163 Id at para 31. See also Carmichele v Minister of Safety and Security and Another (Centre for Applied Legal Studies intervening) 2001 (4) SA 938 (CC); 2001 (10) BCLR 995 (CC) at para 44.

164 See, for example, the classic reasoning in the Mavromattis Palestine Concession (Jurisdiction) Case, PCIJ Reports, series A, no 2, at 12 where the International Court of Justice reasoned as follows: “By taking up the case of one of its subjects and by resorting to diplomatic action or international judicial proceedings on his behalf, a State is in reality asserting its own rights ‘ its right to ensure, in the person of its subjects, respect for the rules of international law. This traditional view has its origins in the writings of Vattel in the 18th century. See Vattel The Law of Nations (1758) chap VI at 136. However, see the more contemporary reasoning of the Umpire in the Mixed Claims Commission between the US and Germany quoted by Erasmus and Davidson in “Do South Africans have a right to diplomatic protection?” 2000 (25) SA Yearbook of International Law 113 at 119.

165 See the discussion in the First Report of the Special Rapporteur on Diplomatic Protection above n 2 at paras 18-19.

166 See the Written Statement submitted by the Government of the Republic of South Africa to the International Court of Justice on 30 January 2004 in respect of the request of the United Nations General Assembly for an advisory opinion on the legal consequences of the construction of a wall by Israel in the occupied Palestinian territory.

167 Section 9 provides that:“(1) Everyone is equal before the law and has the right to equal protection and benefit of the law.(2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to promote or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.(3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.(4)No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3).(5)Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.”

168 Shaw International Law 4 ed (Cambridge University Press, Cambridge 1997) at 462-463.

169 Brownlie above n 1 at 388. See also the Nottebohm Case (Liechtenstein v. Guatemala) 1955 ICJ 4, which dealt with the issue of fraudulent naturalisation.

170 Dugard International Law: A South African Perspective 2 ed (Juta, Cape Town 2000) at 209.

171 Iran-United States Case No. A/18 (1984-1) 5 Iran-USCTR 251, Iran-United States Claims Tribunal discussed in Aldrich The Jurisprudence of the Iran-United States Tribunal (Clarendon Press, Oxford 1996) at 56-7. The issue was whether the Tribunal had jurisdiction over claims against Iran by persons who were, under US law, citizens of the US and who were, under Iranian law, citizens of the Islamic Republic of Iran. The Tribunal held that it did have jurisdiction where the dominant and effective nationality of the claimant during the relevant period was that of the United States. For further discussion of the case, see Dixon ' McCorquodale Cases and Materials on International Law 4 ed (Oxford University Press, New York 2003) at 423.

172 Brownlie above n 1 at 388.

173 Shaw above n 44 at 463.

174 Section 84(2)(h).

175 Section 84(2)(i).

176 Section 231(1).

177 See, for example, article 32 of the German Basic Law; article 73(2) of the Constitution of Japan; and article 29.4 of the Irish Constitution. In many countries, the foreign policy power arises from the prerogative and is therefore not expressly set out in the Constitution. This is so in the United Kingdom, see de Smith Constitutional and Administrative Law 5 ed (Penguin Books, Middlesex 1985) at 151.

178 See Hugo above nil; President of the Republic of South Africa and Others v South African Rugby Football Union and Others (3) 2000 (1) SA 1 (CC); 1999 (10) BCLR 1059 (CC); Pharmaceutical Manufacturers above n 11.

179 Id SARFU at para 143.

180 See Pharmaceutical Manufacturers above n 11 at paras 20 and 90.

181 Bato Star above n 15 at para 48.

182 See Rudolf Hess case (Case No 2 BvR 419/80) reported in 90 ILR 386 at 395-396.

183 Id. See also the Cruise Missile case 66BVerfge 30 (1983).

184 2001 (3) SA 893 (CC); 2001 (7) BCLR 685 (CC).

185 Id at para 42.

186 Id at para 59. See also para 63 where the Court reasoned as follows:“An indispensable component of such consent would be awareness on the part of Mohamed that he could not lawfully be delivered by the South African authorities to the United States without obtaining an undertaking as a condition to such delivery that if convicted the death sentence would not be imposed on him or, if imposed, would not be carried out.

187 See, for example, the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988, article 9(1) of which provides that: “The Parties shall co-operate closely with one another, consistent with their respective domestic legal and administrative systems, with a view to enhancing the effectiveness of law enforcement action to suppress the commission of offences established in accordance with article 3, paragraph 1.They shall, in particular, on the basis of bilateral or multilateral agreements or arrangements:(a)Establish and maintain channels of communication between their competent agencies and services to facilitate the secure and rapid exchange of information concerning all aspects of offences established in accordance with article 3, paragraph 1, including, if the Parties concerned deem it appropriate, links with other criminal activities; (b)Co-operate with one another in conducting enquiries, with respect to offences … having an international character …; (c) In appropriate cases and if not contrary to domestic law, establish joint teams, taking into account the need to protect the security of persons and of operations, to carry out the provisions of this paragraph …; (d)Provide, when appropriate, necessary quantities of substances for analytical or investigative purposes; (e)Facilitate effective co-ordination between their competent agencies and services and promote the exchange of personnel and other experts, including the posting of liaison officers.“ See also article 10 of the Convention for the Suppression of Unlawful Seizure of Aircraft, 1970.

188 This relief was sought in prayers 2 and 3 of the notice of motion as follows: “2. Directing and ordering the Government of the Republic of South Africa (“the Government”) to take all reasonable and necessary steps as a matter of extreme urgency, to seek the release and/or extradition of the applicants from the Governments of Zimbabwe and/or Equatorial Guinea, as the case may be, to South Africa. 3. Declaring that the Government of the Republic of South Africa (“the Government”) is, as a matter of law, entitled to request the release and/or extradition of the applicants from the Governments of Zimbabwe and/or Equatorial Guinea, as the case may be, to South Africa.”

189 Section 14 of the Revised Edition of the Extradition Act of 1996 (Zimbabwe) makes it a requirement that extradition may not take place unless the offence for which the person is extradited is an offence both under Zimbabwean law and under the law of the extraditing country.

190 At the hearing, applicants’ counsel asked for the relief sought in paragraph 4 of the notice of motion to be modified. The reformulated relief is set out in the judgment of the Chief Justice at para 109. The reformulation of the relief does not affect the reasoning in these paragraphs.

191 South Africa signed and ratified the Charter on 9 July 1996; Zimbabwe signed the Charter on 20 February 1986 and ratified it on 30 May 1986; and Equatorial Guinea signed the Charter on 18 August 1986 and ratified it on 7 April 1986.

192 Equatorial Guinea ratified the Covenant on 25 December 1987; Zimbabwe ratified it on 13 August 1991 and South Africa ratified it on 10 March 1999.

193 Article 10 of the Universal Declaration of Human Rights provides that: “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.“

194 See, Öcalan v Turkey Application 46221/99, 12 March 2003, in which the European Court on Human Rights held at para 207 that: “[T]o impose the death sentence on a person after an unfair trial is to subject that person wrongfully to the fear that he will be executed. The fear and uncertainty as to the future generated by a sentence of death, in circumstances where there exists a real possibility that the sentence will be enforced, must give rise to a significant degree of human anguish. Such anguish cannot be dissociated from the unfairness of the proceedings underlying the sentence…“

195 It is true that the attitude of the respondents as set out in the answering affidavits is different to the attitude taken by the Deputy Minister of Foreign Affairs in the television interview referred to in para 242 above.

196 Id

197 S.v Basson 2004 (6) BCLR 620 (CC).

198 Id at para 128.

199 Mohamed and Another v President of the Republic of South Africa and Others 2001 (3) SA 893 (CC); 2001 (7) BCLR 685 (CC).

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Constitutional Court of South Africa: Samuel Kaunda and Others V. President of the Republic of South Africa and Others*

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Constitutional Court of South Africa: Samuel Kaunda and Others V. President of the Republic of South Africa and Others*

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