Equatorial Guinea authorities are being given a chance to go on a fishing expedition by questioning Mark Thatcher, a Cape High Court judge said on Wednesday.
Judge Deon van Zyl’s remark came during the second day of legal argument on Thatcher’s bid to overturn a subpoena ordering him to answer questions on an alleged coup bid in Equatorial Guinea.
Nineteen men, including several South Africans, are currently on trial in Malabo for their part in the affair, though proceedings have been suspended while prosecutors seek to question Thatcher.
Thatcher himself has been charged in South Africa under this country’s anti-mercenary legislation.
The state’s lead counsel, Michael Donen, on Wednesday faced some tough questioning from Van Zyl and his two colleagues on the bench, Essa Moosa and Daniel Dlodlo.
Van Zyl asked why, when Minister of Justice and Constitutional Development Brigitte Mabandla approved the Equatorial Guinea request for the subpoena, she did not ask for a transcript of evidence from the Malabo case, supposed to be attached to the Equatorial Guinea papers.
In the transcript, alleged coup plotter Nick du Toit tells the court he has only met Thatcher once, and that was to discuss helicopters destined for Sudan.
Van Zyl said if Donen wanted the court to hold that Mabandla’s decision was rational, she should surely have looked at the transcript.
If she had known it merely detailed a conversation about helicopters in Sudan, Van Zyl wanted to know on what basis the minister could have granted leave for the questioning.
“It’s not just a rubber-stamping of jurisdictional requirements,” he said.
Equatorial Guinea has claimed the questioning will be in the interests of justice and securing a fair trial for the South Africans.
Van Zyl would expect the minister to have applied her mind to the “factual basis” on which questioning Thatcher could benefit those two ends.
“Why should they have been given this opportunity to go on a fishing expedition?” he asked.
Donen said the minister had a “policy discretion” in considering the request, and was briefed by officials on the Malabo proceedings.
He would imagine Equatorial Guinea takes coup attempts “pretty seriously”, and there were suggestions Thatcher was arrested in connection with the coup bid.
“There is a trend in Central Africa where cheque-book colonialists hire small groups of former SANDF [South African National Defence Force] members and buy themselves a small country that has oil,” he said.
Donen said South Africa and Equatorial Guinea have agreed to cooperate on transnational crime, and the latter wants to investigate the coup bid, particularly its financing. There is nothing exceptional about that.
Trying to make a connection between what was going on in the trial and the list of Thatcher questions is “an insuperable task”, and not one that the minister is required to carry out.
There have been 86 similar requests this year from various countries for cooperation in criminal matters, and investigating every request would leave very little time for governing the country.
He said Thatcher’s proper course of action would be to appear before the Cape Town magistrate who issued the subpoena, and refuse to answer particular questions on the grounds of a witness’s right against self incrimination.
“He has a duty to testify because this process is a different process to the [Thatcher’s own] criminal trial,” he said.
Earlier, Thatcher’s counsel Peter Hodes told the court three of the men on trial in Malabo have said they were tortured.
He said the trial is based on an inquisitorial system in which the men are brought to court only when they are to give evidence.
They are unable to hear testimony by either their co-accused or by witnesses, and translations are done only from English to the Equato-Guinean lingua franca, Spanish, and not the other way round.
When they are brought in, they are in handcuffs and leg irons.
“The accused never hear a state witness testify,” Hodes said. “It is appalling beyond understanding.”
He said the United Nations Commission on Human Rights has reported continuing grave human rights abuses in Equatorial Guinea, and has said it has been a matter of concern “longer than any other country”.
“You’re dealing here with thugs, m’lord. That’s who you’re dealing with,” he told Van Zyl.
Donen will continue his argument on Thursday. — Sapa
Tough questions in Thatcher case