(a) In terms of the Extradition Act 67 of 19621 Section 5, the magistrate’s court, upon
notification from the Minister, is empowered to adjudicate over the extradition
proceedings. Section 13 (1) of Extradition Act 67 of 19622 states that ‘any person
against who an order has been issued against him or her in terms of section 10 or 12 of
the Extradition Act 67 of 1962, may appeal such order to the provincial of local division
of the Supreme Court having jurisdiction”.
(b) The general corresponding principles which usually accompany extradition agreements
are the following:3
“The crime must be of a serious nature and must be punishable in both countries
or according to the principles of double criminality;
A person cannot be extradited to a foreign country if charged with a political
crime;
A person may only be charged for the crime he/she has been extradited for in the
foreign country, unless there is an agreement between the two countries to add
other charges;
Extradition is refused if the crime perpetrated in the foreign country is punishable
by the death penalty, and the sending country does not punish such crime by the
death penalty;
1
Extradition Act 67 of 1962
2
Extradition Act 67 of 1962
3
Basdeo M, Geldenhuys T and Karels MG “Securing the attendance of the accused at the trial” in Joubert JJ
(ed) Criminal Procedure Handbook 12. (Juta Cape Town 2018) 7-160
1
, An extradition agreement contains a ne bis indem rule which corresponds with
pleas of acquittal and conviction.
c) The crime committed by X and Y is a serious crime which is punishable in both South
Africa and Botswana. South Africa, however, cannot be compelled to extradite X and Y
to Botswana as the crime committed carries a death penalty and the Section 11 of South
African Constitution4 state “Everyone has the right to life”. It is also prohibited according
to the principles of extradition. Should South Africa agree to extradite X and Y, Botswana
will have to undertake not to sentence them to death.
The facts are similar to the facts in the case of Minister of Home Affairs and Others V
Tsebe and Others.5 Two male persons faced charges of murder in Botswana, where
capital crime such as murder is punished by a death sentence. They applied for an order
to the High Court to prevent their extradition unless Botswana in the absence of an
assurance that they will not receive the death sentence. The High Court granted the
order taking the approach taken in the case of Mohamed and Another v President of the
Republic of South Africa and Others6 the High Court held that a person may not be
extradited to a country where they could face the death penalty, without assurance that
the death penalty will not be imposed.
The extradition of X and Y will be unlawful and unconstitutional, if it is carried out without
assurance that death penalty will not be imposed.
4
Constitution of the Republic of South Africa, 1996
5
Minister of Home Affairs and Others V Tsebe and Others, Minister of Justice and Constitutional
Development and Another v Tsebe and Others 2012 SA (5) 467 (CC)
6
Mohamed and Another v President of the Republic of South Africa and Others (CCT 17/01) [2001] ZACC 18
; 2001 (3) SA 893 (CC); 2001 (7) BCLR 685 (CC) (28 May 2001)
2
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