REPUBLIC OF SOUTH AFRICA COMBINED SECOND PERIODIC REPORT UNDER THE AFRICAN CHARTER ON HUMAN AND PEOPLE`S RIGHTS and INITIAL REPORT UNDER THE PROTOCOL TO THE AFRICAN CHARTER ON THE RIGHTS OF WOMEN IN AFRICA country of origin, but to any country in which they might be subject to persecution. The only possible exception provided for is the case that the person to be expelled constitutes a danger to national security. The protection of refugees and the principle of non-refoulement in South Africa are enshrined under the Refugees Act, 1998.32 39. This Act gives effect to the relevant international legal instruments, principles and standards relating to refugees. In practice, vulnerable persons residing in South Africa are safe from secondary persecution as a result of forced expulsion. Although the principle of nonrefoulement is universally accepted, problems with refoulement frequently arise due to the fact that its application requires a recognised refugee status. Furthermore, not all countries are members to the UN Convention relating to the Status of Refugees or may not have established formal procedures for determining refugee status. It is worth noting that the South African courts have upheld the principle of non-refoulement. 40. With respect to South Africa’s existing extradition framework, the Extradition Act33 provides, amongst others, for extradition for dual criminality offences, punishable by a sentence of six months imprisonment or more. South Africa can also extradite its own nationals, but all extraditions must be consistent with the Constitution. Some extradition agreements provide for the application of human rights norms, but even those countries that do not provide for such extradition agreements’ application, may refuse extradition on the grounds of human rights considerations. The two main human rights norms are the non-imposition of the death penalty and non-discrimination. Case law pertaining to the right to life 41. South Africa will not extradite foreign nationals suspected of crimes that may lead to them facing the death penalty in those countries that seek to try them. 42. During the period under review, the matter of Minister of Home Affairs v Tsebe34 was handed down by the Constitutional Court. The Court clarified some aspects of extradition, as well as some relating to deportation and sojourn in South Africa. In this case, two Botswana nationals were charged with committing murder in Botswana. They fled to South Africa where they were apprehended and processed for deportation. The Court made it clear that such foreign nationals may only be extradited (or deported) if the country to which they are being deported has provided an undertaking or guarantee to South Africa that the death penalty will not be imposed and executed in the case of the said foreign national being found guilty of the alleged crime that he or she has been charged with in his or her country of origin. 43. In the Constitutional Court, Zondo AJ noted that – 32 33 34 Act No. 130 of 1998 Act No. 67 of 1962 2012 (5) SA 476 (CC) 17