State officials brought down a few notches

Court shows home affairs employees that despite what they believe, they’re not above the law, writes Carmel Rickard.

At last, the apparently almighty Department of Home Affairs has been forced to toe the line. Almost 20 years since South Africa’s democratic constitution was adopted, the department’s officials might finally begin to respect – or at least not flout – our supreme law.

The court case that should finally rein in renegade officials concerns Edwin Samotse, a citizen of Botswana, wanted in his home country on charges of having killed his girlfriend. His escape to South Africa sparked consternation about what should happen next.

That’s because the courts here have made it clear in a series of judgments that no one may be extradited from South Africa to face charges in a country that retains the death penalty when there is a chance that the suspect might be executed.

The only exception would be if the home country agrees in writing not to seek the death penalty or that, if passed, it will not be implemented.

In Samotse’s case, however, he was sent back to Botswana without such an undertaking, and the officials who deported him did so despite a clear non-extradition order issued by South Africa’s minister of Justice and Correctional Services.

They also blatantly ignored an interdict by the Gauteng Division of the High Court in Pretoria as well as other previous court decisions spelling out that extraditions were illegal without the required undertaking.

Acting for Samotse, Lawyers for Human Rights went to court in August. They asked the court to order a departmental inquiry into the role played by the officials involved in the decision-making about Samotse. And, this is equally key, they wanted the court to order that standing departmental operating procedures be formulated to ensure it never happened again.

The high court duly made such an order, but – are you surprised? – officials weren’t ready with their reports on the due date.

Finally, however, the information was handed over to the court and, on December 23, Judge Eberhard Bertelsmann delivered a decision examining both reports – one on how the illegal extradition was allowed to happen and the other on what would be done to prevent such a thing happening again. Both provide crucial information.

The first showed that the court was right about its suspicion that an initial affidavit by a top official was a cover-up, intended, as Judge Bertelsmann put it, “to wrap the (department’s) head officials in Teflon, and to place the full blame for the unlawful and unconstitutional deportation at the door of three (prison) officials”.

The investigation showed that several senior home affairs officials were ultimately responsible for the deportation, although they knew of the ministerial order that Samotse was not to be extradited and the court’s order that he not be handed over. These officials are also facing disciplinary steps.

The second important report relates to new steps to ensure there will be no repetition of the Samotse deportation.

This new system will ensure better communication between the department’s dealing with a suspect being sought by another country. Officials of the Department of Justice, responsible for issuing an order that the person not be extradited, will communicate directly with its counterparts in the Department of Home Affairs.

There’s also to be oversight by an outside agency: the South African Human Rights Commission is to be informed of each such case and invited to consult potential deportees to ensure their fundamental rights are not unlawfully infringed.

In addition – you might wonder why this took so long – every immigration official will undergo a six-week training course on lawful arrests, lawful search-and-seizure, prevention of fraud and corruption, and giving evidence in court, among others. Officials will also be given a booklet on the approved procedures and key court decisions affecting immigration officials.

Judge Bertelsmann said he would also like to see standard procedures developed on how officials record and deal with phone calls from detainees’ legal representatives – this is because such calls are routinely ignored.

Anyone who has followed the outrageous behaviour of certain home affairs officials will know that for decades officials of the department have acted as though they are governed by a different system to the rest of us, flouting court orders with impunity.

It is remarkable that they’ve thumbed their collective noses at the constitution and the judiciary for so long. Will things improve in the wake of this case?

They can hardly get worse.