The South African constitution, which outlaws the death sentence, has saved a Botswana citizen from possibly hanging if convicted of a murder charge in his country.
Keitekile Jampe, with the help of Lawyers for Human Rights, turned to the high court in Pretoria for an urgent order that he be released from the Lindela Repatriation Camp in Krugersdorp, where he has been detained for more than 430 days pending extradition to Botswana.
But Jampe said that if he goes back to his country of origin, he might be hanged. The Botswana police are looking for him in connection with a charge of murder.
The parties settled the matter in terms of which Home Affairs agreed not to deport him unless the Botswana government gave an assurance that he would not receive the death penalty if he returned.
Judge Lettie Molopa-Sethosa also ordered that he be released from Lindela. Jampe has to report to the director-general of Home Affairs to secure his lawful stay in South Africa in terms of the immigration regulations.
Jampe said in court papers that he was born in 1979 in a village in Botswana. He has no formal education and is a shepherd.
He fled to South Africa in August last year as he feared he would be arrested for a crime, which, if he were to be convicted, was punishable by the death sentence.
He was arrested by the SAPS shortly after he crossed the border for entering the country illegally.
A magistrate in Kuruman in the Northern Cape sentenced him to 50 days' imprisonment for being in the country illegally. This he served, but when he was released, he was nabbed again and taken to Lindela. Jampe said while he was there, his uncle told him the police in Botswana were asking about his whereabouts.
This related to the criminal investigation against him. He did not elaborate on the alleged crime.
Apart from his detention for being unlawful in South Africa, he said he feared he would be extradited to Botswana. He said he had overheard an immigration official saying "We know what you have done and we're deporting you back to Botswana".
Botswana prescribes the death penalty for murder and treason. South Africa, which abolished the death penalty more than 20 years ago, cannot in terms of the law and constitution send a person back to a country while knowing that the person may face death.
The Home Affairs director-general, in similar cases in the past, submitted a report to the court which set out the department's obligations to prevent the unconstitutional extradition to states where the death penalty was still in force. It also set out how long detainees may remain in detention before facing a court.
In the past, the courts ordered that people facing a possible death sentence may not be deported until that country had given the assurance they would not be executed.
Jampe said he lived in fear every day at Lindela that he would be deported back to Botswana. "I live in fear for my life and safety."
Jampe said had not been charged with a crime in South Africa, so he could not apply for bail. Neither had Home Affairs followed the proper process for deportation, so his only alternative was to approach the court.
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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde
but by the punishments that the good have inflicted." -- Oscar Wilde
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