Judge criticises home affairs for bad treatment of foreigners

THERE is “something fundamentally wrong” with the way the Department of Home Affairs handles the repatriation of migrants, Judge Eberhard Bertelsmann said in North Gauteng High Court.

“We have had the case of (Khalfan Khamis) Mohamed and the case of Emmanuel Tsebe, now we have the case of Edwin Samotse. Not only is it the same problem, but the failure to protect the fundamental right to life of an individual has raised its head again,” said Judge Bertelsmann.

“Again, the fundamental rights of an individual have been trampled underfoot. There comes a time where a court must (say) there is something fundamentally wrong in the manner in which the responsible department treats these cases.”

The court was concerned at the way the department handled extraditions.

“The time has come to find out why this has happened again. The time has come to put it right. Surely a court must be concerned with the manner and fashion the department deals with issues of this nature. We know it has happened several times before. Courts have pronounced upon it but the results have been unsatisfactory,” said the judge.

Mohamed, a Tanzanian citizen and alleged al-Qaeda operative, was arrested in Cape Town and immigration authorities handed him over to US police. He had fled to South Africa after the 1998 East African bombings in which more than 200 people died.

He was convicted in the US but in the aftermath, the Constitutional Court determined that the South African government could not extradite suspects if they faced prospects of capital punishment.

In 2012, the Constitutional Court ruled that Jerry Phale and Tsebe could not be

The failure to protect the right to life has raised

its head again

deported to Botswana before the South African government was assured they would not face the gallows there.

Gaborone allegedly wanted to arrest the duo for the murder of their partners when they fled to South Africa.

On Friday, the High Court was reviewing a report by the home affairs and international relations departments on the illegal deportation of Samotse, a Botswana citizen.

Samotse, a wanted murderaccused in his home country, was deported on August 13 this year, in spite of a South African court order barring the extradition. At the time, Samotse was in custody at the Polokwane police station while the Botswana gover nment sought his extradition.

Crimes such as murder, treason and an attempt to kill the head of state as well as military offences of mutiny and desertion, are punishable by death in Botswana.

The court had found it was illegal for the department to deport or surrender a foreigner facing the death penalty, if deported without the requisite assurance being obtained.

On Friday, Judge Bertelsmann said there was “a hearsay allegation” indicating that Samotse had escaped from a prison in Botswana.

Maryna Steenkamp of Legal Aid SA and Steven Budlender of Lawyers for Human Rights (LHR), representing Samotse, told the court the departments’ report was thin on detail. They requested Bertelsmann to order the departments to provide additional information, especially the disciplinary measures against staff. Judgment was reserved. LHR human rights lawyer David Cote said Samotse’s case was significant to South Africa.

“This case comes down to the rule of law and rules being followed by home affairs department as to how to deal with foreign nationals. It ensures that home affairs follows procedure and unlawful deportations don’t happen in the future,” said Cote. – Sapa