The Cape High Court on Wednesday rejected alleged coup plotter Mark Thatcher’s bid to quash a planned questioning session by Equatorial Guinea prosecutors.
His legal team had argued that the questioning, scheduled to take place before a Cape Town magistrate on Friday, violated Thatcher’s constitutional rights to silence and against self-incrimination.
However Judge Deon van Zyl, heading a full bench of the court, said these rights had ”at no stage” been violated or even threatened, and that Thatcher could raise them at any time when he appeared before the magistrate.
Justice Minister Brigitte Mabandla had acted neither irrationally nor unconstitutionally when she approved the Equatorial Guinea request for co-operation.
”It would hence appear that… the weight of authority is against permitting the applicant to exercise his right to silence and his right against such incrimination at this stage of the proceedings,” Van Zyl said.
He ordered Thatcher to pay the costs of the application. Speaking to local and British media on the steps of the court afterwards, Thatcher said: ”It was a long judgement but the most important thing was that the court did reaffirm my right to silence.”
His attorney, Alan Bruce-Brand, was unwilling to comment on whether they would appeal or approach the Constitutional Court.
”We’ll study the judgement,” he said.
The Equatorial Guinea prosecutors believe Thatcher helped finance a failed bid to topple the central African country’s president, Teodoro Obiang Nguema, in March this year.
They have filed two separate lists of questions, many of them related to Thatcher’s relationship to mercenary boss Simon Mann, now serving time in a Zimbabwe jail, and alleged mercenary Nick du Toit.
Du Toit is one of 26 people being tried in Equatorial Guinea in connection with the coup bid.
Last week the prosecutors named Thatcher, who lives in Cape Town, as a 27th co-accused, and said he would be tried in absentia.
The prosecutors have already asked for the death penalty for Du Toit.
One of Thatcher’s arguments in his high court application was that before approving the questioning, Mabandla should have insisted on an undertaking from Equatorial Guinea that the death penalty would not be imposed.
However Van Zyl said there was no way the South African government could interfere with the Equatorial Guinea trial.
”If there should indeed be a conviction and the death penalty should be imposed, the South African government would doubtless make representations… to have the sentence commuted,” he said.
The suggestion that Mabandla had, by approving the request, associated the government with the death penalty, was ”a gross exaggeration, if not an unfair representation of the government’s declared policy”.
Van Zyl did however criticise Mabandla in one respect: he said her affidavit gave no indication that she had read Thatcher’s founding affidavit, nor did it say to what extent the contents of her affidavit fell within her personal knowledge.
”Allegations of this nature are fundamental to any affidavit,” he said.
”It is inexplicable that they could simply have been omitted, whatever the extent of the pressure on the deponent as a result of time constraints.”
He said the affidavit ”simply does not measure up to the standard one would expect at this level”.
Van Zyl also criticised a report by a justice department official, an I Thindisa, who visited Equatorial Guinea in July and declared that the trial there appeared to be ”fair, open and transparent”.
He said Thindisa’s report was based mostly on what the chief prosecutor had told him, and for the rest on unidentified hearsay sources.
The ”somewhat superficial” report raised a question mark about Thindisa’s own experience, if any, of trials.
He was clearly not present for an important part of the trial and by his own account did not speak to the accused.
It ”could not have been acceptable” for only one Spanish-speaking counsel to represent all the accused, Van Zyl said.
Thatcher, son of former British prime minister Margaret Thatcher, is on bail after being arrested under South Africa’s anti-mercenary legislation.
He appears again in court on that charge on Thursday. – Sapa