Zim 70 'behind the scene talks'

2004-05-26 18:37

Pretoria - Seventy South Africans being held in Zimbabwe on suspicion of plotting a coup in Equatorial Guinea could aid their extradition home by confessing to mercenary activities, the Pretoria High Court heard on Wednesday.

The men, seeking a South African trial, have been asked to provide local prosecutors with information to prepare a criminal case against them, Ishmael Semenya, SC, told the court.

They could be charged at home with contravening the Regulation of Foreign Military Assistance Act, which outlaws mercenary activities, Semenya argued on behalf of the government.

But there was not enough evidence to issue a warrant for their arrest - a pre-requisite for an extradition request.

"Assistance with information... has not been forthcoming from the applicants," Semenya said.

The men are seeking a court order directing the government to uphold their constitutional rights. They claim they will not have a fair trial in Zimbabwe or Equatorial Guinea - and give countless examples of the "pernicious" state of the rule of law in both countries.

They also fear being put to death if deported to Equatorial Guinea.

Lawyers for the men told Judge Bernard Ngoepe that South African investigators had sufficient evidence to seek the extradition.

But the men have not admitted to being mercenaries and have been warned by Ngoepe not to try and butter their bread on both sides.

'Behind the scenes' talks

"You cannot have it both ways," the judge told their advocate, Francois Joubert SC.

Joubert said there had been some "behind the scenes" discussions with South African prosecutors, but gave no detail.

The men were arrested at Harare International Airport more than two months ago when they apparently landed to refuel and pick up military equipment.

Authorities believe they were on their way to join 15 suspected mercenaries - including eight South Africans - arrested in Equatorial Guinea for allegedly plotting to overthrow the west African country's leader Teodoro Obiang Nguema.

The men claim they were headed for the Democratic Republic of Congo to do mine security work. They went armed for fear of attacks by rebel troops.

These admitted facts, Joubert contended, were sufficient for South Africa to seek the men's extradition. They have admitted to being recruited for involvement in armed conflict for gain, he said.

Ngoepe expressed concern that a premature extradition order might defeat the ends of justice in both Zimbabwe and South Africa as a lack of evidence could result in their wrongful acquittal.

Death penalty

Semenya said the government had no duty to secure the release of nationals detained in foreign countries, even if the rights they enjoyed at home were imperilled.

The court had no right, he added, to order the South African government to ask Zimbabwe not to send the men to Equatorial Guinea. The government could also not ask the two countries to refrain from imposing the death penalty.

Such an order would compel the government to do something it was incapable of enforcing, Semenya said.

He argued that the South African Bill of Rights could not be enforced in foreign jurisdictions.

Ngoepe seemed to agree, stating: "We will go to war with many countries."

Semenya said the court was not in a position to make a judgment on the state of affairs in Zimbabwe and Equatorial Guinea or to find the men would not have a fair trial there.

Intelligence passed

The government abandoned its original denial of state-to-state collaboration in the arrests. Semenya accepted a recent statement by Defence Minister Mosiuoa Lekota that "some intelligence" had changed hands before the men's departure from Polokwane to Harare.

But this had been a legitimate exercise, and did not impose any duty on the government to uphold the men's rights.

The men had put themselves at peril of the death penalty by getting onto the aircraft that took them to Harare Semenya said. The government had no hand in that.

"They could have pointed that plane in whatever direction they wanted to."

The hearing continues on Thursday.

- SAPA