Frank Buyanga’s lawyer says ‘continued incarceration’ in SA is ‘unlawful’

By Ntwaagae Seleka | News24 |

The lawyer representing businessman Frank Buyanga Sadiqi, who was detained by Interpol South Africa in Sandton last week, has called for a speedy bail hearing for his client.

Laurence Hodes SC told the Randburg Magistrate’s Court that Sadiqi was entitled to bail.

Hodes added that the warrant Interpol executed to arrest Sadiqi on 10 November had been cancelled in Zimbabwe.

“The South African state is aware of that. We are only awaiting confirmation from the Department of International Relations and Cooperation (Dirco). The matter has attracted local and international news organisations.

“His continued incarceration is unlawful. We have an authentic court order from Zimbabwe, showing the cancellation of his warrant of arrest,” Hodes told the court.

Sadiqi was wanted in Zimbabwe on charges of kidnapping and robbery as well as three counts of contempt of court, News24 earlier reported.

In a statement, police spokesperson Athlenda Mathe said Sadiqi had allegedly kidnapped his son and brought him to South Africa.

Mathe said: “A warrant of arrest was immediately issued by Zimbabwean authorities, after which Interpol Harare also issued a red notice.”

On Thursday, Hodes claimed he handed over documents, including Sadiqi’s passport, to the National Prosecuting Authority (NPA). Hodes said Sadiqi owned property in South Africa.

“We have attached his proof of visa permits to our affidavit. These would assist in showing he is not a flight risk and is entitled to bail. The accused is applying to have custody of his child in South Africa.

“There is [a court] order in Zimbabwe that his child is in his custody. The High Court in Johannesburg is determining which parent would be given custody of his 8-year-old son.

“There is no basis to detain him. He was arrested at the address we had submitted. I am ready to proceed with the bail application.

“Should the State decide to proceed with the bail [application], we are ready. If there is no warrant, he should be released,” Hodes added.

“The chief magistrate in Zimbabwe sent an email to DPP in SA that the warrant has been cancelled. The only document that gives this court jurisdiction to hear the matter is a warrant of arrest.

“Absent to that, there is no basis for his detention. The extradition of a person is done based on the commitment between two states working together. We are dealing here with a person’s liberty,” Hodes argued.

Prosecutor advocate Rutondo Phungo argued that the State had to authenticate the documents they had received from the defence before the bail application could begin.

Phungo said: “His passport needs to be verified by home affairs. Other documents, including the warrant of arrest, must be verified by relevant local departments. We are not ready to proceed. We know bail is a matter of urgency.”

“Those documents were provided today, not on 12 November as was expected. We acknowledged the receipt of the warrant. The court should bear in mind that these matters involve Dirco.

“Dirco will assist in authenticating all documents we have received. The only channel of communication between South Africa and Zimbabwe is through Dirco. Without them giving us instructions, we cannot authenticate their court orders.”

Phungo said it was strange that a Zimbabwean court communicated with the defence instead of the NPA.

“They should have sent the documents to our offices requesting us not to proceed with our prosecution. We need to get the authentication and validity of the court order.

“We believe that Zimbabwe should have made means to inform us about the cancellation of the court order. When we receive such, we will decide. We are still proceeding with the extradition process, as our government had requested.

“There are reasons why such matters should go via Dirco and our justice department. We have requested Dirco to communicate with Zimbabwe to expedite the matter. Interpol also assists in obtaining authentic documents. They are communicating with Zimbabwe.”

The matter was postponed to 22 November for verification of the Zimbabwean court order and other documents.