Professor Brian O Connell vice counsellor of the University of Western Cape with Judge Edwin Cameron. Picture: Etienne Creux

Johannesburg -

A Botswana national wanted for murder may not be extradited unless that country gives the assurances that he would not face the death penalty, the Constitutional Court ruled on Friday.

Justice Edwin Cameron said it would be a breach of the statutory values of the SA Constitution to hand him over to Botswana without this assurance.

He dismissed the appeal by South Africa's ministers of home affairs and justice, re-affirming a previous judgment which set a precedent in this regard.

The precedent-setting judgment related to Khalfan Mohamed, who was wanted by the US in connection with the bombing of its embassy in Tanzania in 1998.

The Constitutional Court ruled previously that even if there was an extradition agreement between South Africa and the US, he could not be handed over without an agreement that he would not face the death penalty.

Friday's ruling related to Botswana citizens Emmanuel Tsebe and Jerry Phale, who had entered South Africa allegedly after murdering family members in separate cases.

Tsebe has since died.

Phale's attorney Jacob van Garderen said it was important to affirm that there would not be an extradition to a country where people faced the death penalty, without such an agreement.

“The court again emphasised that the imposition of the death penalty is unconstitutional, in line with the judgment of Mohamed.”

Van Garderen said Friday's judgment meant Phale no longer faced the immediate risk of being extradited.

“But nothing stops the (Botswana) government from making a new request.” - Sapa