The judges hearing Mark Thatcher’s Cape High Court application on Wednesday subjected the state’s legal team to some tough questioning on Thatcher’s constitutional rights.
Thatcher is seeking to overturn a subpoena ordering him to answer questions on an alleged coup bid in Equatorial Guinea, on the grounds that it violates his right to silence.
Nineteen men, including several South Africans, are currently on trial in Malabo, Equatorial Guinea, for their part in the affair, though proceedings have been suspended while prosecutors seek to question Thatcher, who allegedly bankrolled the alleged attempt.
Thatcher himself has been charged in South Africa under this country’s anti-mercenary law.
The state’s lead counsel, Michael Donen, told the High Court on Wednesday that the proper course of action would be for Thatcher to appear before the Cape Town magistrate who issued the subpoena, and refuse to answer particular questions.
He said there are categories of evidence and situations in which a person may raise the right of silence.
The right under discussion in Thatcher’s case is a witness’s right against self-incrimination in a process separate from his own criminal trial.
Though he can refuse on those grounds to answer particular questions, he does have a duty as a witness to testify.
However, Judge Deon van Zyl, who is leading a three-man full bench, said it appears that if Thatcher fails to answer any questions ”satisfactorily” he will be exposed to a fine or three months in jail.
He said Thatcher is an accused, not just a witness, to which Donen replied that for the purposes of the questioning, Thatcher is a witness.
”He has a duty to testify because this process is a different process to the criminal trial.”
This assistance to the Equatorial Guinea authorities should be given particularly in the light of that country’s undertakings that the Malabo trial will be fair, and South Africa’s promise to make representations to Equatorial Guinea on commutation of any death penalty imposed on the South African accused.
Van Zyl said there is no indication of ”any compliance with any undertaking”.
He also asked whether it was rational for Minister of Justice and Constitutional Development Brigitte Mabandla to have given the go-ahead for the subpoena without having seen a transcript of the Malabo proceedings in which Thatcher was named.
The transcript was missing from the documents sent to Pretoria in which the Equatorial Guinea authorities asked for Thatcher to be questioned.
Donen, he said, could think about this over the lunch adjournment. — Sapa