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Pretoria - Home Affairs officials acted with flagrant disregard for the human rights of Botswana national Edwin Samotse when they deported him, the North Gauteng High Court ruled on Tuesday.
"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," Judge Eberhard 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."
Lawyers for Human Rights and Legal Aid SA approached the court in a bid to compel home affairs to find Samotse in Botswana and seek assurance that he would not face the death penalty if convicted.
Samotse, a wanted murder-accused in his home country, was deported despite a South African court order barring the extradition. He faces the death penalty in his country.
Home Affairs ‘should have known’
Bertelsmann said Samotse was denied the opportunity to consult his lawyers and hastily deported.
"The [home affairs] officials should be fully aware of the duty to engage the legal representatives, quite apart from the fact that the failure to deal with messages left by the lawyers creates the impression that the department is at best inefficient or at worst unconcerned," Bertelsmann said.
He said when home affairs became aware that Legal Aid SA was seeking an interdict, it must have known the extradition would be deemed illegal.
"To hasten the deportation under these circumstances might, prima facie, be regarded as an unlawful perversion of the course of justice, saying nothing of the contempt of court," said Bertelsmann.
He ordered home affairs to ensure vulnerable deportees were allowed to consult lawyers before being thrown out of the country.
There had been a number of recent decisions by home affairs that involved alleged violations of human rights in deportation and asylum matters, he said.
The department undertook to speak to its Botswana counterparts about Samotse and report back to the court by 15 October.
