Top judge flays Home Affairs

Department of Home Affairs officials who played a part in deporting a murder accused to Botswana, where he could face the death penalty, should be charged with attempted murder, the Pretoria High Court heard yesterday.

The department was attacked for deporting Edwin Samotse from Polokwane prison last month, despite attempts to draw its attention to a non-surrender order signed by the minister of justice and correctional services.

The department also ignored an interdict prohibiting Samotse's deportation, it was claimed.

Judge Eberhard Bertelsmann raised the question of whether the officials responsible should be charged with attempted murder on several occasions.

"If they knew he was facing the death penalty and surrendered him voluntarily, why should this not surmount to attempted murder?" he questioned.

The Constitutional Court has previously ruled that "deportation, extradition or any form of removal" of individuals who could face the death penalty in their home countries "is wholly unacceptable", since capital punishment is unconstitutional in South Africa.

Minister of Home Affairs Malusi Gigaba is cited as the first respondent in the application, which he is opposing.

Home Affairs department immigration officer Samuel Matlou and the department's chief immigration officer, Madimetja Mojale, were cited as second and third respondents, while several government employees were accused of contributing to the deportation.

Three department employees have already been suspended and Lawyers for Human Rights (LHR), which is representing Samotse, has called for an investigation into how the deportation happened.

It emerged yesterday that a senior legal adviser had failed to circulate an e-mail that alerted the department to the non-surrender order after Botswana refused to give assurances that Samotse would not be executed if he was sent back home.

The e-mail was only opened five days after it was sent.

The department claims that these were "isolated" incidents, but the LHR accuses the department of trying to "insulate" senior officials.

The judge emphasised the seriousness of the department's actions, questioning whether any "red lights" went off for the officials involved.

"There is a huge responsibility on the department. How can [court] orders that mean life or death lie around and gather dust, while the life of a vulnerable individual is left at risk? We are dealing with death," he exclaimed.

Bertelsmann said he was "concerned" that department officials were not aware that South Africa does not surrender people to another country if they face the possibility of the death penalty.

Samotse's lawyer, Maryna Steenekamp SC, said there was a ''culture" at the department of acting contrary to court orders.

Judgment was reserved.