The Dignity Jurisprudence of the Constitutional Court of South Africa: Cases and Materials, Volumes I & II

Kaunda

Kaunda and Others v. President of the Republic of South Africa and Others  () SA  (CC) CASE SUMMARY Facts Sixty-nine South African citizens—very likely mercenaries—were detained in Zimbabwe on various charges. Two days after the applicants were arrested in March , fifteen men, the majority of whom were South African, were detained in Equatorial Guinea. They too were accused of being mercenaries and plotting a coup to overthrow the president of Equatorial Guinea. The applicants feared that they would be extradited from Zimbabwe to Equatorial Guinea and put on trial for a variety of capital offenses. The applicants contended that they would not receive a fair trial in Equatorial Guinea and would risk being sentenced to death. The applicants therefore sought a mandamus compelling the South African government to intervene on their behalf. The mandamus would ensure that their rights to dignity, freedom and security of the person, fair conditions of detention, and the right to a fair trial would at all times be respected and be protected in Zimbabwe and Equatorial Guinea. Legal History The applicants approached the Transvaal Provincial Division of the High Court for relief. The High Court dismissed their application. The applicants approached the Kaunda Constitutional Court for leave to appeal directly, as a matter of urgency, against the decision of the High Court. The Constitutional Court held that the disposal of the complex questions of law raised in the matter would have an important effect, not only on the applicants but on the South African polity writ large. It therefore granted the direct appeal. Issues Does the Constitution require the South African government to take diplomatic steps to protect the constitutional rights while South African citizens are engaged in activities abroad? Does the complicity of the South African government in the detention of the alleged mercenaries in Zimbabwe invariably engage the fundamental rights asserted by the applicants vis-à-vis the South African government? Decision of the Constitutional Court The court held that no obligation could be imposed on the South African government to ensure that the rights that the applicants have in terms of the South African Bill of Rights are at all times respected and protected in Zimbabwe or Equatorial Guinea. However, South African nationals facing adverse legal action in a foreign state are entitled to request that the South African government to provide protection against acts that violate accepted norms of international law. The government is obliged to consider such requests and deal with them appropriately. Any decision taken by the executive is subject to constitutional control. That said, the courts must be mindful of the fact that decisions, which engage foreign affairs—such as the instant matter—fall within the expertise of the executive. The current position of the South African government was that it will only make diplomatic representations concerning the imposition of the death penalty only when a South African citizen is so sentenced. The court held that the applicants had not shown that the South African government’s policy (or its response in the instant matter) was contrary to the norms of international law. Comment The manner in which the Constitutional Court arrived at this conclusion and denied all seven forms of requested relief is worth further analysis. The textual basis for the Kaunda Court’s rejection of the claim that the Bill of Rights applies to extraterritorial legal proceedings begins with a curiously cursory appraisal of FC section () and ends with what ultimately amounts to a very narrow construction of the holding in Mohamed. The Kaunda court writes: The starting point of the enquiry into extraterritoriality is to determine the ambit of the rights that are the subject matter of section (). . . . [T]he rights in the Bill of Rights on which reliance is placed for this part of the argument are rights that vest in everyone. Foreigners are entitled to require the South  Kaunda African state to respect, protect and promote their rights to life and dignity and not to be treated or punished in a cruel, inhuman or degrading way while they are in South Africa (paragraph ). Foreigners are entitled to all but a few of the rights enshrined in Chapter —including the right to dignity—when they are in South Africa. That is what Mohamed told us. The Kaunda Court continues: “Clearly, [foreigners] lose the benefit of that protection when they move beyond our borders” (paragraph ). There is nothing clear about the...