Home affairs must know the law - Gigaba

2014-09-23 18:30
Malusi Gigaba (GCIS)

Malusi Gigaba (GCIS)

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Pretoria - Home Affairs Minister Malusi Gigaba must ensure his staff knows the law applying to immigrants and deportations, the North Gauteng High Court in Pretoria ruled on Tuesday.

Judge Eberhard Bertelsmann referred Gigaba to a previous Constitutional Court ruling involving the deportations of two Botswana nationals.

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

In 2012, the Constitutional Court ruled that Jerry Phale and Emmanuel Tsebe could not be deported to Botswana before the South African government got assurances they would not face the gallows across the border.

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

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

On Tuesday, Legal Aid SA, joined by Lawyers for Human Rights (LHR), wanted the court to compel home affairs to find Botswana national Edwin Samotse and seek assurance that he would not face the death penalty if convicted of murder in that country.

Samotse, a wanted murder-accused in his home country, was deported on 13 August 2014, despite a South African court order barring the extradition.

Bertelsmann said Samotse was denied the opportunity to consult his lawyers and hastily deported.

"The first respondent [Gigaba] is directed to have specific procedures for checking extradition requests from other countries and to have a specific procedure for ensuring that orders of no-surrender from the justice minister are brought to the attention of every immigration official."

He said Gigaba had until 15 October 2014 to tell the court what steps he had taken to implement the order.

"The first respondent is ordered to pay the applicant's costs, including the costs occasioned on 13 August 2014, including the cost of two counsel."


Gigaba was directed to investigate the deportation, and inform the court of his findings before 14 October.

Bertelsmann said Samotse's whereabouts in Botswana had not been established. He ordered the Registrar of the high court to ensure his ruling was delivered and brought to the attention of the Botswana High Court, or equivalent "as a matter of urgency".

Earlier, Bertelsmann said home affairs officials acted with flagrant disregard for human rights when they deported Samotse.

"It is obvious that the three Polokwane officials are prima facie guilty of having infringed the applicant's fundamental rights to life, dignity and a murder trial to which a shadow of the gallows does not fall," Bertelsmann said.

He ruled the deportation was illegal and unconstitutional.

"They may in fact have to, prima facie, face a charge of attempted murder for the unlawful exposure of the applicant to the death penalty."

LHR human rights lawyer David Cote said his organisation was very happy with Bertelsmann's ruling.

"Standard operating procedures must be brought in by the department so that such deportations will not take place in the future," said Cote.

He said LHR understood Samotse was in detention but had yet to stand trial in Botswana.

Read more on:    malusi gigaba  |  pretoria  |  crime

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