A South African citizen passed away on Sunday, 8th September 02 in Botswana. Mr. David Motlatsi Mafojane, was standing trial in Botswana for his alleged involvement in an armed robbery following an illegal extradition.

The South African Human Rights Commission received a complaint from Ms Nthabeleng Sarah Mafojane, a relative of Mr. Mafojane, alleging that three members of the South African Police Service had assisted two Botswana police to illegally extradite her brother to Botswana. The Commission contacted members of the South African Police Service about this matter and were informed that SAPS would approach their Botswana counterparts. A meeting then took place between Commissioner of Police, Mr. Jackie Selebi, and his Botswana counterpart to try and resolve the matter. The South African Human Rights Commission was then advised that the Botswana police demonstrated willingness to facilitate the return of Mr. Mafojane.

The Commission also wrote a letter to the Department of Foreign Affairs requesting them to intervene in this matter and was informed that the department was requested not to get involved and afford the National Commissioner of Police an opportunity to negotiate the return of Mr. Mafojane. The SAHRC was then informed by Mr. Mafojane's defence counsel that the Botswana Government was not interested in the illegality of Mr. Mafojane's removal from South Africa but were only interested in the criminal prosecution. He further advised the Commission that Mr. Mafojane would only be returned to South Africa if he were acquitted.

The Commission was concerned that the intervention by the National Police Commissioner did not prove to be fruitful and then wrote a letter to the Ministers of Safety and Security and Foreign Affairs requesting their assistance on the matter. The Commission received acknowledgement letter from Foreign Affairs and was told that the matter was receiving urgent attention. The Commission also received responses from SAPS and the International Criminal Police Organisation (Interpol- Pretoria) that the Botswana Police had been given permission to identify a suspect believed to be a resident at a Soweto address. Contrary to this permission the Botswana Police unilaterally and without the consent of the SAPS in arrested and removed Mr. Mafojane from South Africa to Botswana. The Interpol confirmed that the visit by the Botswana authorities was merely to identify a suspect at a certain address. The Botswana authorities were requested to return Mr. mafojane and failed to do so. Mr. Mafojane took ill and died on Sunday, 8th September 2002.

The Commission would like to state categorically that it does not condone criminal activities by anyone and anywhere. Its intervention was therefore not based on whether Mr. Mafojane was guilty or not. That is for the courts to determine. However the Commission is concerned with the manner in which Mr. Mafojane was removed from South Africa.

South Africa and the Botswana government have a bilateral treaty on procedures to be followed on arrest of persons suspected of having committed a crime in a foreign country. In the present case the treaty specifically required that the Botswana Government make a formal request either to the Minister of Foreign Affairs or the Minister of Safety and Security. The Ministers would in turn be required to approach the South African courts for an appropriate order after receiving a valid warrant of arrest by the Botswana Government. None of the above mentioned procedures were followed.

We must ensure that as a society we are committed to the notion of legality, irrespective of the nature of challenges we face and we must do so within the framework of the law. If not then we face the real risk of descending into a society of lawlessness. Thus proper procedures should have been followed in the arrest and extradition of Mr. Mafojane. His right to administrative action that is lawful, reasonable, and procedurally fair and equal protection and benefit of the law should have been respected. It is unfortunate that at the time of his death he was surrounded the above-mentioned circumstances. The Commission would like to pass its condolences to his family.

Issued by the South African Human Rights Commission
Date: 11 September
For further information please phone:
Phumla Mthala Contact Number: (011) 484-8300/ 083 265 3612

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