Judgement was reserved on Thursday in Mark Thatcher’s Cape High Court bid to avoid answering questions from Equatorial Guinea prosecutors.
Judge Deon van Zyl said he and his two colleagues on the bench, Essa Moosa and Daniel Dlodlo, will try to deliver their ruling ”as soon as possible”.
However, lawyers involved in the three-day hearing said that given the complexity of the case and the judges’ other commitments, it is unlikely to be handed down in the near future.
They also said that whatever the Cape judges’ decision, the case is likely to end up in the Constitutional Court.
Thatcher, who Equatorial Guinea authorities believe was the mastermind behind a coup bid for which 19 people are currently on trial in the Central African country, is himself out on bail after being arrested under South Africa’s anti-mercenary legislation.
He maintains a subpoena — issued with the approval of Minister of Justice and Constitutional Development Brigitte Mabandla — ordering him to appear before a Cape Town magistrate to answer the questions violates his right to silence.
When the hearing adjourned, he spoke briefly to journalists on the steps of the court before being driven off in his chauffeured, silver-blue BMW.
”Having heard the arguments of both sides, I remain confident of the merits of the application that I have made and I will await with interest and attentively for the judgement of the court,” he said.
”I know that you’ve all been listening to what the bench has had to say in the past three days, and I can only commend their comments to you all.”
Thatcher was apparently referring to critical comments by Van Zyl, who at one stage described the Equatorial Guinea questioning bid as a ”fishing expedition”, and queried the ”very strange” absence of key documentation from an official Equatorial Guinea request to Mabandla.
He also asked whether Mabandla should have sought an undertaking from Equatorial Guinea that South African accused Nick du Toit would not be sentenced to death before she agreed to cooperate with the country’s authorities.
As the hearing drew to a close on Thursday, Van Zyl hit out at an Equatorial Guinea legal representative, British solicitor Henry Page, who works in the Paris office of the firm Pennington’s.
Referring to the quality of documentation authored by Page in the court papers, he said Page ought to be reported to his Bar association.
”If this is the nature of the legal advice the Equatorial Guineans are getting, I would suggest very strongly they get another legal adviser,” the judge said.
Earlier, advocate Michael Donen, appearing for Mabandla, who is cited as a respondent in the application, sought to downplay allegations by one of the alleged Equatorial Guinea coup plotters that he had been tortured.
In August this year, South African Jose Cardoso told the Malabo court where he and the 18 others are standing trial that he had been tortured with electric shocks.
He also identified in court an Equatorial Guinea official who was present during the torture session.
However, Donen said on Thursday that one hears allegations of torture in South African courts as well.
The ”real test”, he said, will be at the conclusion of the Malabo trial, when judgement and sentence are handed down.
Noting a 1977 protocol to the Geneva Convention that seeks to guarantee detained participants in armed conflict a fair trial, and calls for them to be present during the trial, he acknowledged that so far the men have been brought before the Malabo court individually, and have not heard each other’s testimony.
But it remains to be seen whether they will be in court when other witnesses testify, he said.
Replying to suggestions by Thatcher’s legal team that the Malabo court is a military tribunal, he said there is no direct evidence that this is the case.
In fact, an affidavit by a South African justice department official who had observed part of the trial suggested otherwise.
Even if it is a military court, the situation is not ”beyond repair”, as this is allowable under the protocol on condition it is fair and meets international standards.
Thatcher’s team has claimed the Equatorial Guinea justice system is run by ”thugs”, and that because the country’s president — against whom the coup was allegedly planned — is head of the judiciary, there is no hope of a fair trial for the men. — Sapa