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03 Dec 2010 00:00
Emmanuel Tsebe’s case might have led to a land- mark judgment on extradition and immigration in South Africa.
But days before it was due to be heard, the 31- year-old Botswana national died in a West Rand hospital.
Lawyers allege Tsebe was unlawfully detained by South African police for two years for being an illegal immigrant and that his lawyers were not allowed to see him while he was in hospital.
Tsebe arrived in South Africa to stay with family members in July 2008 amid accusations that he had murdered his girlfriend in Botswana.
Three days later he was arrested and the Botswana government requested his extradition.
But Botswana still has the death penalty and, according to a 2001 Constitutional Court judgment, South Africa cannot extradite a person suspected of a capital crime to a country that could execute him or her without an undertaking that this will not happen.
Jeff Radebe, the minister of justice, issued an order of “no surrender” after the Botswana government refused to give such an assurance.
What was to be done with Tsebe? Setting him free would create the risk that South Africa would be seen as a haven for alleged criminals, but there was no legal framework to try him in South Africa.
And by the time Tsebe’s extradition case was finalised, he had been detained in correctional services facilities for more than a year.
He was moved to the Lindela repatriation centre, where he remained from August last year until October this year, when he was moved to the Krugersdorp prison.
He had been held for two years, even though the Immigration Act stipulates that an immigrant can be detained for a maximum of 120 days.
The department of home affairs, ignoring Radebe’s order, tried to deport him to Botswana.
The department reasoned that if Tsebe was convicted and sentenced to death he could appeal to the Southern Africa Development Community’s Tribunal or to the African Commission.
But the tribunal has been suspended indefinitely and the African Commission can do little to stop an execution, as was highlighted by the secret hang- ing of South African Marietta Bosch in Botswana in 2001, although she had appealed to it.
Tsebe’s legal representative, Lawyers for Human Rights, took court action to block the deportation as a disguised extradition.
Home affairs then brought criminal charges against him as an illegal foreigner.
Gina Snyman, an LHR attorney, pointed out that even if Tsebe had been convicted of the offence it carried a maximum sentence of three months’ jail — far shorter than the term of his detention.
“Would home affairs then have recharged him with the same crime on completion of every three-month sentence, until the matter was resolved in the main high court application seeking his release?” Snyman asked.
Tsebe was to have appeared in the Krugersdorp Magistrate’s Court on December 7 to answer the charge.
But when Snyman went to the prison on November 22 to see him, she was told that he had been in Leratong Hospital for six days.
She tried repeatedly to gain access to him, as was his legal right, only to be told by the guards that she required authorisation from the head of the prison, Blessing Madondo, who refused to grant her authorisation for “security reasons”.
On Monday this week she was told in a telephone call that Tsebe had died in hospital three days earlier.
“We believe that his prolonged detention and lack of adequate medical treatment, and certainly the spurious criminal charges against him and his transfer to prison ... directly impacted on his health,” said Snyman.
“The notification we received from correctional services indicates that he may have had malaria or meningitis.”
The state and the LHR may still go to court to argue the matter. Snyman said the LHR would welcome this as the “state’s conduct in this matter has been unlawful”.
“There should definitely be an inquiry into Tsebe’s treatment by the various arms of state,” she said.
“He had certainly not been treated with dignity or been able to access his constitutional rights.”
Meanwhile, two men have died within a week in police custody in Johannesburg. On Monday, Donelle Jackson was arrested for armed robbery and held at the Sophiatown police station.
Shortly thereafter, his sister was told that he had hanged himself. And last Thursday Riaan Velloen, arrested for drinking in public, was found dead in a cell at the Florida police station.
His family believes he was beaten to death by police.
Both incidents are under investigation.
Correctional services did not respond to a request for comment.
Read more from Ilham Rawoot
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