The court heard arguments in the case of two Botswana citizens identified as Emmanuel Tsebe and Jerry Phale.

They are at present illegally residing in South Africa and are being sought by their country of origin for the murders of their respective partners.

Tsebe has since died.

Tsebe and Phale applied to the High Court in Johannesburg to prevent their extradition to Botswana to stand trial unless their country gave a written assurance that the death penalty would not be imposed.

The court granted the order.

However, South Africa's ministers of justice, home affairs, and constitutional development disputed the ruling, and challenged the reasoning behind it.

Michael Donen, for the justice ministry, said there were three ways the matter could be dealt with.

The immigrants could be allowed to walk free, the government could adopt legislation to deal with the matter, or a diplomatic approach could be followed.

Donen said his client had no alternative but to resort to using political clout.

Marumo Moerane, for home affairs, said the Immigration Act provided a systematic way of how to deal with illegal immigrants and that these included those with warrants for murder.

"The two [Tsebe and Phale] are prohibited illegal foreigners and liable to be deported."

He said there was no evidence that Phale would be convicted for the murder to which he is implicated by circumstantial evidence.

He said if Phale was not deported, he would become a liability to South Africa because he could not find employment.

Pressed to admit that the risk of a death penalty existed for Phale, Moerane said: "All I can say is that it is a possibility."

Anton Katz, for Tsebe and Phale, argued that the minister of home affairs could determine conditions similar to those outlined for bail conditions while seeking the assurance from Botswana.

On a question from the bench about the risk of South Africa being seen as a haven for murderers, Katz said constitutional values weighed heavier than public perceptions.

Phale was not a convicted criminal in South Africa, he said.

Counsel for the Society for the Abolition of the Death Penalty, Steven Budlender, who also acted as friend of the court asked the court to dismiss the application for leave to appeal with costs.

Amnesty International counsel Paul Kennedy described the South African government's approach in the matter as "radical".

Judgment was reserved.