The court held that each and every one of the accused was handed over to the Namibian authorities by the Botswana authorities without any intervention by or connivance of the Namibian authorities. The reasons for the action taken by the Botswana authorities was contained in the Note Verbale and the acceptance warrants, delivered to and produced by the State witnesses in whose custody they had been. But the truth or otherwise of those exhibits was no concern of the State witnesses or the instant court.
The court held that the instant enquiry was whether the Republic of Namibia played any part or connived in the decision of the Republic of Botswana to deport the accused. The evidence showed conclusively that it did not. The decision was entirely that of Botswana in the legitimate exercise of its powers as a sovereign State. Botswana merely informed Namibia of the decision and provided Namibia with lists of the persons to be deported as appeared from the documentary evidence produced in the instant matter.
International law; immigration law; extradition; abduction; deportation; disguised extradition; criminal law; criminal procedure
In the instant case, the accused persons were indicted on charges of high treason, sedition, public violence and unauthorized importation, supply or possession of firearms and ammunition. They entered special pleas in terms of the s 106 (3) Criminal Procedure Act [51 of 1977] that the court had no jurisdiction to try them. The applicants argued that they were abducted from Botswana and transported to the Republic of Namibia and the purported arrest and detention pursuant thereto was in breach of international law and wrongful and unlawful. In addition, under the circumstances they had not been properly and lawfully arrested and arraigned before a court of competent jurisdiction for purposes of trying them on the indictment preferred against them and should hence be discharged.
The court held that the accused persons happened to be on the lists and the Namibian immigration officers duly handed them over to the police who arrested them on Namibian soil and charged them with high treason. Therefore, the State had satisfactorily discharged the onus of proving that all the accused persons had been properly and lawfully brought before the court. Therefore, the court had jurisdiction to try the accused and the special pleas were all dismissed.
All of the accused were handed over to the Namibian authorities by the Botswana authorities without any intervention by or connivance of the Namibian authorities. The reasons for the action taken by the Botswana authorities was contained in the Note Verbale and the acceptance warrants, delivered to and produced by the State witnesses in whose custody they have been.