The state argued in the Constitutional Court on Tuesday that it has no duty to intervene in the case of 69 South Africans currently being held in Zimbabwe and facing extradition to Equatorial Guinea for an alleged coup plot.
On Monday lawyers for the 69 as well as others appearing as friends of the court argued the state indeed has such a duty.
The 69 were arrested earlier this year and, if extradited and found guilty in Equatorial Guinea, could be sentenced to death.
Advocate Ismael Semenya, arguing for President Thabo Mbeki and several other ministers, conceded that the state, under the Constitution, sometimes has a duty to protect its citizens abroad.
But this is only in cases where it is actually in control of them, for example at its embassy in London. That is clearly not the case here.
In addition, orders sought by the applicants would have a destabilising effect on the constitutional balance, predicated on the principle of separation of power, Semenya said in written argument.
”Those orders will require this court to intervene in matters which repose in the executive branch of government, when there is no evidence to show that executive functionaries have failed to discharge constitutional or statutory duties imposed on them,” he said.
There is no evidence to show that such functionaries engaged in any conduct that was inconsistent with the Constitution.
In the absence of such evidence, Semenya said the application must be rejected.
The case continues. — Sapa
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