The ”samoosa file” is set to return to haunt the South African government when the case of missing Pakistani national Khalid Rashid returns to court in eight days’ time.
The file belonging to the Home Affairs Department’s attorney, Vas Soni, mysteriously found its way into a food hamper belonging to a friend of Rashid’s flamboyant lawyer, Zehir Omar, at an earlier court hearing.
It contained damaging disclosures suggesting Rashid was arrested at the behest of British Intelligence — not because, as the state contended, he was a suspected illegal immigrant. It also suggested that the Home Affairs Ministry had falsified documents with the aim of misleading the court.
Because of perceptions that the South African authorities covertly cooperated with the United States ”war on terror”, in breach of the Constitution, the case has generated intense political heat.
It included much cloak-and-dagger activity, including midnight arrests and a mysterious flight from an air force base on a plane allegedly owned by an international smuggling outfit linked to the CIA. The operation was reportedly overseen by National Director of Crime Intelligence Gathering Willie Els.
The government has repeatedly failed to comply fully with court orders that it provide details of Rashid’s disappearance. It has oscillated between insisting that the arrest was a routine deportation and hinting that Rashid had terrorist links that threatened the security of South Africa or the US.
The full truth is likely to emerge in the appeal before a three-judge Bench in the Pretoria High Court on August 25.
Omar wants the court to order an investigation into Rashid’s disappearance and rule that the persons involved, including Cabinet ministers, be prosecuted under the Rome Statute for crimes against humanity.
He is accused in the state’s replying affidavit of mounting a campaign ”against the South African state, the state president and its people [accusing them] of committing crimes against humanity, including abduction and forced disappearance”.
The ”samoosa file”, which is central to Omar’s case, found its way into a food hamper when the opposing parties broke for a quick, shared meal at a hearing on Rashid in May this year.
Soni was scandalised the next day when Omar brought the file to court and began introducing its contents into the record.
He had told presiding Judge Justice Poswa that he could produce Rashid’s airline ticket ”within minutes” if needed. However, it became apparent that Rashid had been spirited out of the country via Waterkloof Airforce Base in Pretoria, and that the air ticket in question did not exist.
Judge Poswa ruled that the file contained sensitive information that could not be published. Omar then revealed its contents to the media, prompting the government to call for him and his wife, Yasmin Naidoo, to be arrested for contempt of court.
However, he successfully applied to Judge Poswa for a declaratory order affirming that the gagging order was intended to last only for the duration of the hearing.
In its papers in the upcoming appeal, the state continues to insist that Rashid entered the country fraudulently after bribing home affairs officials. But Omar is arguing that the correct procedures in deporting Rashid as an illegal were not followed, and that he was the subject of an ”enforced disappearance”.
Previous court hearings have established that Rashid was arrested without a warrant and that he was not allowed access to a lawyer or to the courts. He was held incommunicado at Cullinan police station for five days.
He signed a document known as the B-1724 Form 29, which must be completed before a suspected illegal immigrant can be arrested. But the courts have found that the protection it offers suspects is inadequate and that it is illegal.
They have also mandated a three-day waiting period — to enable suspects to decide whether they wish to appeal against their illegal status — before they can be arrested.
The Wits law clinic, admitted to the Rashid proceedings as an amicus curiae, says in its papers that it has also obtained a judgement from the Johannesburg High Court declaring ”that the Department of Home Affairs practice of keeping foreigners in detention for periods of more than 30 days without confirming such detention before a judge was unlawful”.
Earlier this month, Omar secured the release of a 17-year-old Pakistani boy who had been held for 11 days at Lindela without access to a court or a lawyer. In July he secured the release of 17 Muslims from Lindela, one of whom had been there for more than a year.
Wrongly accused
Mohammed Hendi may have won the right to live in South Africa, but he insists his detention and near-deportation two years ago has ruined his life.
Hendi was arrested with four other Jordanians in Johannesburg in April 2004. Woken by heavily armed members of the crime intelligence unit, soldiers and home affairs officials, he was kept tied up in a police cell without access to a lawyer or the use of a telephone before being taken to Johannesburg International airport for deportation.
He was saved by airport security, who asked for his deportation papers when he created a scene. Unable to produce them, the police returned him to jail for a further 21 days.
Police National Commissioner Jackie Selebi told Parliament in June that the arrested men were members of alQaeda bent on destabilising South Africa’s election. But, after the intervention of the Wits law clinic, all charges against Hendi were dropped and he was released. He has since been granted permanent residence.
”I thought that was the end of it,” he said, ”but it was actually just the beginning. Nobody wants to do business with an alQaeda operative. I was blacklisted and people stared at me in the street.”
Hendi’s legal fees have run into thousands of rands and he has had to sell his bakkie to keep his creditors at bay. He tried to sue Selebi and the police, but ran out of money.
”I have lost everything because of this,” he said. Hendi came to Johannesburg in 2002 ”looking for a better life”. After two years as a sweets and biscuit salesman, he was able to buy a bakkie and a house. ”What do I know about alQaeda?” he asked. ”I had not even heard about these people before September 11.”
He believes he was targeted because of a lunch he attended where two other Jordanians, who were later deported, were also present. — Yolandi Groenewald