A highly emotive application by the 70 South Africans held as suspected mercenaries in Harare since March 7 was countered this week by a cold-eyed defence of the South African government.
For the applicants, advocate Francois Joubert began proceedings by showing a CBS documentary on the booming oil economy of Equatorial Guinea and that small country’s parlous human rights record. Equatorial Guinea is the likely destination of the 70 men if the application before Judge President Bernard Ngoepe fails.
Zimbabwean authorities are considering an extradition request from Equatorial Guinea, which was purportedly the target of the alleged mercenaries.
Joubert has asked for a declarative ruling ordering the government to request the extradition of the men. He told the court he has assurances from state advocates in Zimbabwe that if the South African government asks for extradition it will get it. ‘At the moment the only thing on the table is the Equatorial Guinea request for extradition. We have nothing,†he said.
Joubert is also asking Judge Ngoepe to order government ‘to take all necessary and reasonable steps to ensure the applicants are not extradited to Equatorial Guinea and that they are not subjected to the death penaltyâ€.
Supporting the application, advocate David Unterhalter, acting for the Society for the Abolition of the Death Penalty, said the government had put the 70 men in peril of the death penalty by tipping off the authorities in Zimbabwe and Equatorial Guinea before they left South Africa on March 7.
This triggered a constitutional obligation to protect the men from a punishment that was anathema in South Africa.
Joubert said the consequences of the men being tried in Equatorial Guinea would be dire. Given his own experience in dealing with the Zimbabwe authorities he was convinced they would not get a fair trial in Zimbabwe either.
Judge Ngoepe said if the men wanted to come home to be tried they would have to admit to involvement in mercenary activities. ‘You cannot have it both ways,†the judge said.
For the state, advocate Ishmael Simenya said the South African Bill of Rights could not be enforced extra-territorially and that the state had quite legitimately exchanged intelligence with the authorities in Zimbabwe and Equatorial Guinea.
‘It cannot be seriously argued that the lawful exercise of lawful power can violate the rights of citizens,†he said.
The state had not placed the applicants in peril by tipping off the governments in Harare and Malabo, he argued.
‘They placed themselves in peril when they got on to that flight to Zimbabwe.â€