Zehir Omar, the lawyer acting for Khalid Rashid, has applied for leave to appeal to Pretoria’s High Court. Rashid is the Pakistani whose disappearance in 2005 initiated court proceedings challenging the government’s claim that it did not facilitate an extraordinary rendition as part of the ”war on terror”.
Minister of Home Affairs Nosiviwe Mapisa-Nqakula claimed to have deported Rashid in the normal course of business.
In a controversial judgement earlier this year Pretoria’s full Bench, headed by Judge President Bernard Ngoepe, cleared the government of wrongdoing in the Rashid case. Although the court found the department acted suspiciously, the Bench decided that sufficient proof had not been provided that the department knew about the ”terror connections” of the Pakistani or that the government had illegally rendered him to foreign authorities.
In the same judgement Omar was convicted of contempt of court. He had included certain documents in his court application that compromised the state’s position. These documents had been excluded from the proceedings. According to the judgement, an earlier court order had prohibited their publication. Whether this order ever existed is not certain.
Appearing on Omar’s behalf, senior counsel Nasir Cassim argued that another court might come to a different conclusion when presented with the matter and could conclude that the Pakistani had been extradited in a disguised manner.
”Disguised extradition” is the term adopted by the Constitutional Court in another case in which the person disappeared and refers to the ”extraordinary rendition” of people from South Africa bypassing due process. In line with his diplomatic approach Cassim also said Omar’s alleged publication of the compromising documents, originating from the so-called ”Samoosa” file, had been a submission of evidence.
Advocate Max du Plessis of the Wits Law Clinic — the ”friend of the court” presenting Amnesty International’s view on the human rights aspect of the case — argued that the issue of disappearance be given the attention it deserves.
He submitted that even evidence presented by the state to bolster home affairs’s claims would support the view that the alleged deportation of the Pakistani had been an enforced disappearance. The department did not comply with international laws when clandestinely flying Rashid out of the country in a chartered jet, he said.
When asked by Ngoepe what he would want the court to find, Du Plessis demanded a declaration to be issued by the court that the minister of home affairs had acted unconstitutionally in the matter, as well as a court order to investigate fullythe Pakistani’s apprehension in Estcourt.
As part of the appeal proceedings before the Supreme Court of Appeal, either by way of Monday’s application being granted or by way of a petition, new evidence might be presented — for instance, Rashid’s own account of the events, which entirely contradicts home affairs’s version. For now, judgement has been reserved.