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First, the powers of the President which are contained in section 82 1 of the interim Constitution have their origin in the prerogative powers exercised under former constitutions by South African heads of state; second, there are no powers derived from the royal prerogative which are conferred upon the President other than those enumerated in section 82 1.

This subsection does not provide for any power to deport an alien. None of these provisions empowers the state to determine the destination of such deportation, but regulation 23, promulgated under the provisions of section 56, does. Any person to be removed from the Republic under the Act, shall — a if he or she is the holder of a passport issued by any other country or territory, be removed to that country or territory; or b if he or she is not the holder of such a passport — i be removed to the country or territory of which he or she is a citizen or national; or ii and if he or she is stateless, be removed to the country or territory where he or she has a right of domicile.

In our view such an approach is too narrow. The additional question is whether the destinations enumerated in regulation 23 constitute a closed category. Once it has been decided to remove such person and such decision persists, whether the decision to remove is obligatory or permissive, the state has no discretion but to remove the person to the destination as prescribed in paragraphs a and b.

The further question, however, is whether the state has any power regarding the determination of the destination to which the person is to be removed under this regulation over and above that provided for in the regulation.

The state has no remaining prerogative power to deport, for such power is not included in section 84 2 of the Constitution. Its power to deport and determine the destination of such deportation can only be found within the four corners of the Act and the regulations. In terms of regulation 23 such power is limited, regarding destination, to the places mentioned in paragraphs a and b thereof and determined in the manner therein prescribed.

In any event it is clear that regulation 23 comprehensively covers all possibilities; the person with a passport, the person who is a citizen or national of a country and the stateless person. It covers the field of any common law power the state might have had. It follows that in the present case the South African authorities were not empowered to deport Mohamed to the United States.

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The argument on behalf of the government that Mohamed allegedly consented to his deportation to the United States and that such consent validated such deportation will be considered later. Deportation or extradition and the death penalty [38] The lawfulness of the conduct of the South African immigration officers in handing over Mohamed to the FBI for them to take him to the United States was challenged on a further, even more fundamental and entirely different basis.

The argument is derived from the obligation imposed on the South African state by the Constitution to protect the fundamental rights contained in the Bill of Rights. The Constitution also forbids it knowingly to participate, directly or indirectly, in any way in imposing or facilitating the imposition of such punishment.


In particular, so the argument runs, this strikes at the imposition of a sentence of death. Therefore, even if it were permissible to deport Mohamed to a destination to which he had consented and even if he had given his informed consent to such removal, the government would have been under a duty to secure an undertaking from the United States authorities that a sentence of death would not be imposed on him, before permitting his removal to that country.

On the contrary, the values and provisions of the interim Constitution relied upon by this Court in holding that the death sentence was unconstitutional are repeated in the Constitution.

The importance of human dignity to which great weight was given in Makwanyane is emphasised in the Constitution by including it not only as a right, but also as one of the values on which the state is founded. This Court, after a full and detailed consideration of the relevant provisions of the interim Constitution and the arguments for and against capital punishment, concluded unanimously that the death sentence was inconsistent with the values and provisions of the interim Constitution.

There is no need to cover that ground again. The distinction was said to be this. If he was deported that would have been a lawful act on the part of the South African government. There is nothing in our Constitution that precluded the government from deporting an undesirable alien, or that required it to secure an assurance from the United States government that the death sentence would not be imposed on Mohamed if he were to be convicted.

If, however, what happened was in substance an extradition, it would have been unlawful because the correct procedures were not followed. Moreover, if the removal had been effected by way of extradition, it might have been necessary to secure an assurance from the United States government as a condition of the extradition that the death sentence would not be imposed. Deportation is directed to the removal from a state of an alien who has no permission to be there.

Extradition is the handing over by one state to another state of a person convicted or accused there of a crime, with the purpose of enabling the receiving state to deal with such person in accordance with the provisions of its law. Different procedures are prescribed for deportation and extradition, and those differences may be material in specific cases, particularly where the legality of the expulsion is challenged.

In the circumstances of the present case, however, the distinction is not relevant. The procedure followed in removing Mohamed to the United States of America was unlawful whether it is characterised as a deportation or an extradition.

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Moreover, an obligation on the South African government to secure an assurance that the death penalty will not be imposed on a person whom it causes to be removed from South Africa to another country cannot depend on whether the removal is by extradition or deportation. He applied for asylum giving false information in support of his application and was issued with a temporary visa to enable him to remain in South Africa while his application was being considered. Those facts justified the South African government in deporting him.

That, however, is only part of the story, for the crucial events are those that happened after Mohamed had secured his temporary visa. Having been identified by the FBI as a suspect for whom an international arrest warrant had been issued in connection with the bombing of the United States embassy in Tanzania, he was apprehended by the South African immigration authorities in a joint operation undertaken in cooperation with the FBI.

Within two days of his arrest and contrary to the provisions of the Act he was handed over to the FBI by the South African authorities for the purpose of being taken to the United States to be put on trial there for the bombing of the embassy.

On his arrival in the United States he was immediately charged with various offences relating to that bombing and was informed by the court that the death sentence could be imposed on him if he were convicted. That this was likely to happen must have been apparent to the South African authorities as well as to the FBI when the arrangements were made for Mohamed to be removed from South Africa to the United States. Germany has abolished capital punishment and is also party to the European Convention on Human Rights.

The German government sought and secured an assurance from the United States government as a condition of the extradition that if he is convicted, Salim will not be sentenced to death. This is consistent with the practice followed by countries that have abolished the death penalty. It had previously been held by a majority of that Court in siter v Canada Minister of Justice 33 and Reference re Ng Extradition Canada 34 that there was no obligation on Canada before extraditing a suspect to a country that has the death penalty to seek an assurance from the receiving state that the death penalty will not be imposed.

In a unanimous judgment the Court held in Burns 35 that in the light of developments since the decisions in siter and Ng, there is now an obligation on the Canadian government, in the absence of exceptional circumstances, to seek such an assurance.

The Court deliberately refrained from anticipating what those circumstances might be. After weighing the factors for and against extradition without assurances, the Court concluded that in the circumstances of that case, extradition without assurances that the death penalty would not be imposed violated the principles of fundamental justice, and was not justifiable under section 1 of the Charter.

However, like all other rights in the Bill of Rights, it is subject to limitation in terms of section 36 of the Constitution. The requirements prescribed by section 36 are that the limitation must be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors including those mentioned in the section.

In support of this contention he relied on a series of Canadian cases the last of which is Halm v Canada Minister of Employment and Immigration T. In all the cases a challenge to the procedure adopted based on a contention that there should have been a resort to extradition and not deportation was rejected. They are, however, not directly relevant to the question that has to be decided in the present case, which depends upon the values and provisions of our Constitution.

At that time there were no constitutional or treaty constraints which curtailed the powers of the executive. The only question was whether the removal of the applicant complied with the requirements for deportations under English law. The Court held that it did. That decision is of little assistance in deciding what our Constitution required our government to do in the present case.

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Canadian law did not then consider the removal of a person to another country where he or she would face a death sentence to be contrary to the principles of fundamental justice. In siter, La Forest J suggested that there is no reason why the same considerations should not apply to deportations and extraditions in determining what is required to meet the standards of the fundamental principles of justice. Under our Constitution these rights are not qualified by other principles of justice.

There are no such exceptions to the protection of these rights. Where the removal of a person to another country is effected by the state in circumstances that threaten the life or human dignity of such person, sections 10 and 11 of the Bill of Rights are implicated.

This is perhaps best demonstrated by reference to the case of Salim who was extradited from Germany to the United States subject to an assurance that the death penalty would not be imposed on him. This assurance has been implemented by the United States and Salim is to be tried in proceedings in which the death sentence will not be sought. Had that been the case, Mohamed would have been dealt with in the same way as his alleged co-conspirator Salim.

The fact that Mohamed is now facing the possibility of a death sentence is the direct result of the failure by the South African authorities to secure such an undertaking.

The causal connection is clear between the handing over of Mohamed to the FBI for removal to the United States for trial without securing an assurance against the imposition of the death sentence and the threat of such a sentence now being imposed on Mohamed.

According to section 12 1 d and e of our Constitution, everyone has the right to freedom and security of the person, which includes the right not to be tortured in any way and not to be treated or punished in a cruel, inhuman or degrading way.

For the reasons given in Makwanyane, South African law considers a sentence of death to be cruel, inhuman and degrading punishment.

However, in exercising their right to expel such aliens, Contracting States must have regard to Article 3 of the Convention which enshrines one of the fundamental values of democratic societies. The expulsion of an alien may give rise to an issue under this provision where substantial grounds have been shown for believing that the person in question, if expelled, would face a real risk of being subjected to treatment contrary to Article 3 in the receiving country.

In such circumstances, Article 3 implies an obligation not to expel the individual to that country e. The prohibition provided by Article 3 against ill-treatment is equally absolute in expulsion cases.

Thus, whenever substantial grounds have been shown for believing that an individual would face a real risk of being subjected to treatment contrary to Article 3 if removed to another State, the responsibility of the Contracting State to safeguard him or her against such treatment is engaged in the event of expulsion. In these circumstances, the activities of the individual in question, however undesirable or dangerous, cannot be a material consideration.

European courts draw no distinction between deportation and extradition in the application of Article 3 of the European Convention on Human Rights. All are prohibited, and the right of a state to deport an illegal alien is subject to that prohibition. That is the standard that our Constitution demands from our government in circumstances such as those that existed in the present case. They cooperated well knowing that he would be put on trial in the United States to face capital charges.

That he should be arrested and put on trial was clearly a significant and possibly the predominant motive that determined the course that was followed. Otherwise, why instruct the officials at the border to prevent him from leaving South Africa? And why cooperate in the process of sending him to the United States, a country with which he had no connection? They must also have known that there was a real risk that he would be convicted, and that unless an assurance to the contrary were obtained, he would be sentenced to death.

Consent to deportation or extradition [62] A submission strenuously advanced on behalf of the government was that Mohamed had consented to his removal to the United States, whether the removal is properly to be characterised as a deportation or a disguised extradition.

We will, without deciding, assume in favour of the respondents, that a proper consent of such a nature would be enforceable against Mohamed. To be enforceable, however, it would have to be a fully informed consent and one clearly showing that the applicant was aware of the exact nature and extent of the rights being waived in consequence of such consent. Clearly this duty on the part of the South African government was important to Mohamed; and, inevitably, any consent given by him in ignorance of that duty and of the literally vital protection it afforded him, was inchoate.

This requirement applies to all communications between the legal practitioner and client, whether written or oral. This requirement is often contested and one may find confidentiality is absent where, for example, the attorney acts for both parties in a case. The communication must have been made for the purpose of obtaining legal advice or, at the least, closely connected thereto.

In November the confidential legal text was leaked and published in various national newspapers. This right cannot be interpreted as being a positive right, which would otherwise entitle a client to suppress publication once confidentiality has already been breached.

As such, legal professional privilege cannot be claimed against the world at large; providing protection from involuntary disclosure.


Granting of an interdict in circumstances where harm has already occurred is futile. As such, once the public becomes aware of confidential legal communications between the client and legal practitioner, no remedy exists to restrain further dissemination. The advice given must not facilitate the commission of a crime or fraud. This applies regardless of the fact that the attorney may be completely unaware of such crime or fraud. In the case of Waste Products Utilisation Pty Ltd v Wilkes and Another 2 SA W , a tape recording was introduced into evidence wherein the defendant, in discussion with his attorney, intended to fabricate evidence in order to mislead the court.

While accepting that the tape recording was unlawfully made, the court admitted it into evidence; stating that the legal professional privilege so claimed by the defendant was forfeited as a result of the criminal intention behind the communication.

In addition, legal professional privilege will not apply to communications, which are not intended to be privileged, communications not intended to be confidential, the name of the client and facts learnt through the legal practitioners own means and methods De Klerk op cit at The privilege belongs to the client and only the client may expressly waive such privilege. In the case of Mohamed v President of the Republic of South Africa and Others 2 SA CC it was held that legal professional privilege extends to salaried legal advisers in the employ of the government.

Furthermore and in terms of Van der Heever v die Meester en Andere 3 SA 93 T legal professional privilege was further extended to salaried legal advisers in the employ of a private body such as a firm giving tax advice. The courts are not, however, willing to extend privilege to persons giving legal advice who do not have a law degree, which would enable them to be admitted as an attorney or advocate.

An example hereof would be a chartered accountant giving tax advice. Relevant examples of the applicability of legal professional privilege and statutory challenge? In the past, whenever South African Revenue Service Sars required information from a taxpayer regarding an audit or interview, the taxpayer could refuse on the grounds of the information being legally privileged.

However, in terms s 42A of the Tax Administration Laws Amendment Act 23 of , a taxpayer claiming the applicability of legal professional privilege will now have to prove the validity of such privilege by providing a list of extensive information which includes — but is not limited to — a description of each and every document not provided and full details of the legal practitioner.

Interestingly, and as another topical issue currently being considered, the Financial Intelligence Centre Act 38 of FICA , provides major barriers to the doctrine of legal professional privilege. In terms of sch 1 of FICA, accountable institutions such as banks and attorneys are required to comply with various duties.

The most contested of these duties is the onerous duty placed on accountable institutions to report all suspicious activities or transactions to the Financial Intelligence Centre FIC.Also, the new treaty introduced a provision for the surrender of a fugitive with his or her consent without further extradition proceedings. Packaging should be the same as what is found in a retail store, unless the item is handmade or was packaged by the manufacturer in non-retail packaging, such as an unprinted box or plastic bag.

In the case of Waste Products Utilisation Pty Ltd v Wilkes and Another 2 SA W , a tape recording was introduced into evidence wherein the defendant, in discussion with his attorney, intended to fabricate evidence in order to mislead the court. An example hereof would be a chartered accountant giving tax advice.

On the contrary, the impression created by their affidavits is that they were content to let Mohamed go to New York once he had made the election to do so.

In November the confidential legal text was leaked and published in various national newspapers. On his arrival in the United States he was immediately charged with various offences relating to that bombing and was informed by the court that the death sentence could be imposed on him if he were convicted.

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