South African Law Vs DHA

The Law 1- 0 Department of Home Affairs

In recent times, the Department of Home Affairs has held an almost omnipotent position in South African society. Frustrated citizens and foreigners alike have encountered the Department’s perceived lack of respect for the rule of law and will be pleased to hear that a new court judgment has finally forced Home Affairs to play by the rules. The judgment in question involves Edward Samotse, a Botswana national, who is wanted in his country on charges of killing his girlfriend. Samotse had fled to South Africa fearing for his life.

South African Extradition laws

Our courts have created an abundance of case law in terms of which a person cannot be extradited from South Africa to a nation where he or she is likely to face the death penalty upon return. An exception may be made where said country confirms in writing that the death penalty will not be enforced. The Constitutional Court, which is the country’s highest court, has reiterated these views and has set out specific procedures which are required to be followed in such cases.

The Samotse’s case

This did not, however, prevent the Department of Home Affairs from deporting Samotse back to Botswana to face the death penalty, despite a clear non-extradition order having been passed by the Minister of Justice and Correctional Services. These actions were carried out with complete disregard for an interdict handed down in the Gauteng High Court which ordered officials at Home Affairs to refrain from carrying out any extradition in Samotse’s case.

Late in 2014, Samotse (represented by Lawyers for Human Rights) went to court asking that a departmental inquiry be made into the roles of the various Home Affairs officials involved in his extradition. Furthermore, Samotse’s lawyers requested that standing operating procedures for such matters be clearly implemented to ensure that the scenario did not repeat itself in future cases. Samotse was successful at this hearing and the court ordered Home Affairs to compile a report on each of the above aspects.

True to form, the Department was not ready to present these reports on the allocated date, but on 23 December 2014 the court finally received this information. The first report revealed that senior officials at Home Affairs were responsible for the deportation and had tried to conceal this. These officials are now facing disciplinary action. The second report set out various procedures to be implemented in such cases going forward, ensuring efficient communication between the relevant officials at the Department of Home Affairs and the Department of Justice and Correctional Services respectively.

External Agency Involvement

The South African Human Rights Commission has been nominated as an external oversight agency to ensure that the rights of potential deportees are not violated. Finally, all immigration officials have been ordered to undergo training courses on lawful arrests, search-and-seizure, prevention of fraud and corruption, and court proceedings. Further operating procedures will be implemented regarding the treatment of detainees and their rights.

Whatever your views on extradition, this case goes a long way towards ensuring that Home Affairs officials abide by the laws and procedures put in place. It is certainly a step in the right direction and one can only hope that we see a marked improvement in the handling of all matters within the Department.

South African Law Vs DHA

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