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S v Mushwena and Others (SA4/04 ; SA4/04) [2004] NASC 2 (21 July 2004)

.RTF of original document

IN THE SUPREME COURT OF NAMIBIA

In the matter between

versus

CORAM: Strydom, ACJ, O'Linn, AJA, Mtambanengwe, AJA, Gibson, AJA et Chomba, AJA.

HEARD ON: 10-12/05/2004

DELIVERED ON:

____________________________________________________________________________

APPEAL JUDGMENT

____________________________________________________________________________

MTAMBANENGWE A.J.A.: The state appeals against Hoff J's judgment in favour of the thirteen respondents that the court did not have jurisdiction to try them.

The application leading to the court a quo's ruling began as an application on notice of motion supported by various affidavits deposed by the respondents. The notice of motion sought an order declaring inter alia that the respondents apprehension and abduction from Zambia and Botswana respectively, and their subsequent transportation to Namibia and their arrest and detention pursuant thereto was in breach of international law, unlawful and that they had not been properly and lawfully arraigned before the court for trial on the charge preferred against them. The court a quo directed that the notice of motion and the supporting affidavits be regarded as respondents pleas in terms of section 106 (1) of the Criminal Procedure Act 57 of 1977, namely that the court a quo had not jurisdiction to try the 13 respondents.

The respondents, and 117 other persons were facing 278 charges of which the most serious are high treason, murder, attempted murder seduction, robbery with aggravating circumstances, public violence unauthorized possession of firearms and ammunition, theft and malicious damage to property. All the charges arise from an incident at Katima Mulilo on 2 August 1999 when Government institutions, including the Mpacha military base, the Kautonyana Special Field Force base, the Wanela border post, the building housing the Namibian Broadcasting Corporation, the Katima Mulilo Police Station, the Central Business area of the town of Katima Mulilo and the house of a police officer were attacked by groups of armed men resulting in the death of several people and damage to properties. The respondents and their co-accused were part of an exodus of people from the Caprivi Region into neighbouring countries that took place as a result of and prior to the incident. The state of emergency at the time declared in the Caprivi Region was revoked on 26 August 1999 after order was restored by the Namibian Security Forces. Besides the respondents a number of other people were arrested in the country.

It is common cause that all the respondents left Namibia illegally and were all granted asylum in Botswana where they were accommodated at various refugee camps. It is also common cause that at various dates during 1999 all except Osbert Likanyi left the refugee camps illegally, and all had subsequently been apprehended at various locations and at different times by Zambian authorities. At different times subsequent to their apprehension and detention in Zambia, they were handed over to the Namibian authorities. Respondent Likanyi was handed to the Namibian authorities by the Botswana authorities as an illegal immigrant.

All the respondent's claimed in their affidavits that they were abducted by the Namibian authorities and unlawfully surrendered to Namibia. In the proceedings before Hoff J to determine the jurisdictional issue, the State, conceding it had the onus to prove that the court had jurisdiction to try the respondents, led evidence from various witnesses who on various occasions dealt with the respondents. These included police and or Immigration officials from Zambia and Botswana. Only two of the respondents testified, namely Oscar Muyuka Kashaluka Puteho and Fred Maemelo Zieso. The evidence dealt with the respondent as belonging to in all 5 groups according to the way and dates they were apprehended and handed over to Namibia.

The first group included Steven Mamili (since deceased) Moses Limbo Mushwena, Thaddeus Siyoka Ndala, Martin Siyano Tubaundule, Charles Mafenyaho Mushakwa and Oscar Nyambe Puteho. No one from this group was called to testify. At this stage it is worth noting that throughout the cross examination of state witnesses counsel for the respondents devoted all his effort at trying to show that all the respondent's were abducted from Zambia or Botswana and that the Namibian authorities connived in the abduction. This was of course in line with the allegations of respondent's as recorded in their affidavits. The most explicit of the affidavits on that score was that of Charles Mafenyaho Mushekwa and that of Charles Kalipa Samboma, each of which details how they say they were abducted. They read in part as follows:

1. "We were separated and placed in different camps in Botswana. Others and myself were taken to Dukwe Refugee Camp. Although we had been granted political asylum we still reported to the Police Station three times a day, that is at 6 am, 2pm and 6pm. I was not happy with the treatment I received in the camp including the continuous routine of reporting to the Police Station. We were not given enough food so we were starving. Because of these difficulties I decided to leave the country to Zambia. I left with my friend Oscar Puteho for Zambia. We crossed the border into Zambia. When we were in Zambia we went to the Police Station and reported ourselves there. This was on the 18 of June 1999. We informed the police that we were claiming political asylum. We advised the police that we had previously been granted political asylum status in Botswana but had left because of hardship. We were later transferred to Mongu Prison. At Mongu prison we were interviewed by members of Zambian Intelligence Office. We told them the same story we had told the police the previous day. While we were being interviewed by the State Security Officers, the Namibian Police came and wanted to take us back to Namibia. The Commander of the Zambian Police refused. We had told him that United Nations Regulations do not allow the Namibian Police to take us to Namibia to leave the country. The Namibian High Commission requested to see us. Again the Zambian Police refused. We were taken to Lusaka Kamwala Remand Prison. Photographs were taken of us. On the 7^th of August we were called by the prison officers to the prison reception where we were handed to an officer from the Office of the President of Zambia. We were initially asked to collect all our belonging as we were made to believe we were being taken to Europe. We then proceeded to the Zambian Airport. We boarded the plane. But before we boarded the plane we enquired whether the plane was suitable to take us all the way to Europe. The plane was a military plane and we were sure that it could not manage to fly all the way to Europe. The pilot assured us that we were right in thinking that the plane would not reach Europe on a single flight, but told us that we would be making a stop over in a number of countries to refuel and that our first stop was Uganda. When we were airborne we saw that we were going in the wrong direction. We landed at Sesheke Air Strip. We found the Zambian Police had surrounded the Air Strip. A few minutes later Namibia Police also arrived. At that time we were six of us. After disembarking from the plane we were surrounded by both Zambian and Namibian Police. One of my colleagues asked the Zambian Police why they had lied. The Zambian Police said that it was not their problem. The Namibian Police then forcibly took us into their custody. The Namibian Police then forcibly marched us to the Namibian side. During this period, I protested to both the Zambian and Namibian Police that their conduct was unlawful and contrary to the United Nation Charter on Status of Refugees. My protests fell on deaf ears. After crossing the border into Namibia we arrived at Katima Mulilo where our hands were tied by pieces of ropes. They started beating us using their hands and booted feet. I remember specifically being assaulted by Inspector Therone and Chief Inspector Erasmus Shishanda. They were shouting saying they were going to kill us because our people killed their officers. We told them that we had nothing to do with the killing of the officers. We were taken to Mpacha Military Base. At Mpacha Military Base we were handed to the army officers. We spent four days without food except water and we had our hands tied behind our backs.

On the 10^th of August 1999 we were taken to Grootfontein Military Base and late to Grootfontein Prison. I have been in Prison since and appeared in other Magistrate Court and High Court more than 23 times.

I had been granted Political Asylum Status, which I held at the time of abduction from Zambia territory.

I pray the Honourable court to grant me an order in terms of the draft order.

I submit that I was unlawfully brought from the Zambian territory to Namibia.

------------------------------------------------

CHARLES MAFENYAHO MUSHAKWA"

and,

1. "I have read the Affidavit of Charles Mafenyaho Mushakwa and as far as it relates to me, I adopt its contents.

2. Due to the harassment by the Namibian police and security officers I left for Zambia in 1999.

3. I stayed with relatives in Zambia at Mutomena.

4. I subsequently reported myself to Katima police control in Zambia on 19^th March 2001.

5. Whilst I was still in the care of Zambian police officers at the Katima police control, at about 13:00 hours that afternoon, I was surprised to see two Namibina police officers one of whom I knew by the name of Sergeant Evans Simasiku.

6. Later I saw the Namibian police leave the police post.

7. The Namibian police officers returned to the police post later the same evening. Immediately thereafter, Zambia police officers took me from my cell and handed me to the Namibian police.

8. I resisted because I was not aware of any documents authorizing my extradition from Zambia to Namibia.

9. The two Namibian police officers forcibly sat me in between them in the front of the bakkie.

10. The Zambian police officers jumped in the open back of the vehicle giving directions to their Namibian counterparts on how to escape immigration.

11. The immigration gate was locked and the security guard guarding it refused to open the gate saying he had instructions from the Chief Immigration officer not to open without his authority.

12. The Chief immigration officer finally came and questioned the Namibian police officers.

13. One of the Namibian police officers I later came to know as Popyenawa pointed a pistol at me in the vehicle saying I should not say anything.

14. Some discussion took place between the Namibian and the Zambian police officers and the Chief immigration officer. But no documentation was shown to the Chief immigration officer at all. The Chief immigration officer then instructed the watchman to open the gate.

15. I was driven to Katima Mulilo Police station.

16. Upon my arrival at Katima Mulilo Police station I was questioned by Biven Tuwelo the Chief of State security and Commissioner Maasdorp.

17. Whilst still at Katima Police station I was severly beaten and forced to sign some statement.

18. I spent about 14 days there confined alone in a cell. Thereafter I was taken to Grootfontein police station. I eventually appeared in the Magistrate Court and was detained at Grootfontein.

19. It is submitted that my abduction from Zambia to the Republic of Namibia was unlawful as no extradition proceedings were ever instituted all that transpired was that I was simply and purely abducted from Zambia into Namibia.

20. In the circumstances, I pray the honourable court for an order in terms of the draft order.

CHARLES KALIPA SAMBOMA"

The court a quo rightly identified the issue it was called upon to determine:

"Whether the accused persons had been abducted by members of the Namibian Police Force and or members of the Namibian Defence Force". "The State's reply to this issue", he continued, "is that the accused persons had been deported to Namibia by the authorities in Zambia and in Botswana and that this was done without any influence from the authorities in Namibia." The learned Judge a quo then went on to describe what deportation and extradition involved and how they relate or are distinguished one from the other, before finally coming to describe abduction of fugitives across international borders and referring to a number of decisions on how such abduction impacts on the jurisdictional issue. I will hereunder discuss some of the decisions the judge a quo looked at. I must first note that at the end Hoff J referred to the position taken by respondent's counsel, namely:

"It was submitted by Mr. Kauta that if one considers the circumstances under which the thirteen accused persons had been brought into Namibia from neighbouring countries the only inference to be drawn is that there was a collusion or connivance between the respective authorities to abduct the accused persons."

However, the court went on to conclude that:

"Whatever suspicions there may be in this regard I am unable to find on the facts represented to this Court that there was indeed a connive or a collusion between the respective authorities to abduct the accused persons."

In respect of those accused persons who alleged that they had been abducted in the absence of evidence to the contrary, the evidence presented by the state witness stand uncontradicted since they said they had never been arrested by the Namibian authorities on foreign soil.

In respect of those accused persons who allege that they had been abducted the evidence presented by the State was that they had never been arrested by the Namibian authorities on foreign soil.

This evidence stands uncontradicted.

I cannot find that those accused persons had been abducted, in the sense used in the Ebrahim case, by members of the Namibian Police and / or members of the Namibian Defence Force. I come to this conclusion with due consideration of the evidence presented by the defence."

Because, despite this conclusion, the court a quo went on to find that there was disguised extradition and, therefore, that the court had no jurisdiction to try the respondents, and because before us Mr. Kauta submitted that the court a quo erred in finding that there was no collusion or connivance between Namibian and Zambian authorities or between Namibian and Botswana authorities to abduct the respondents, it becomes necessary to review the evidence and the law on which the conclusion by the court and the arguments by counsel are based.

In passing I would like to dispose of Mr. Gauntlet's submission on behalf of the state to the effect that unless there was a cross appeal by respondents they should not be allowed to rely on the issue of disguised extradition. This of course is based on his submission that: "the court held that a disguised extradition existed in this case even though this aspect was never raised in argument before it," and that the court a quo had not sought further submission from counsel in accordance with Kuesa v Minister of Home Affairs. I do not think that much turns on this submission. I say so simply because the court a quo's conclusion, right or wrong, is in my view based on the inference that the court drew from the evidence, and which Mr. Kauta still maintained should be drawn. Whether that inference is the only one that can be drawn from the evidence is another matter. In a sense it is a matter of what label you attach to the submissions by defence counsel in the court a quo, and the fact that Mr. Kauta appears to have exclusively canvassed abduction in his cross examination of state witnesses and in his submissions before the court a quo is neither here nor there as long as evidence was led either in Chief or in cross examination of witnesses, which would warrant the conclusion reached by the court a quo and the raising of the issue on appeal. The passage referred to in Kuesa v Minister of Home Affairs 1996(4) SA 965 (MmSC) appears at 974J and says in part:

"It would be wrong for judicial officers to rely for their decisions on matters not put before them by litigants either in evidence or in oral or written submissions."

While the present case is a criminal matter there are dicta in civil judgments, where application is made on affidavits (evidence), to the effect that a litigant will not be precluded from relying on a ground of appeal raised first on appeal as long as the facts on which he relies are covered by the evidence or are not disputed. (See Kruger v Die Landboubank van Suid Afrika 1968(1) SA 67(9) (Headnote) Gimonis No V Gilbert Ho and Co Ltd. 1963 (1) SA 897 (N) (Headnote); Van Rensburg v Van Rensburg en Andere 1963(1) Sa 505 (A) (Headnote) and Argus Printing and Publishing Co. Ltd. v Die Pers Korporasie van Suid Afrika BPK 1975(4) SA 814 (Headnote).

In the present case the facts on which the court a quo came to the legal conclusion that there was disguised extradition are not really in dispute, they are listed in the judgment a quo as follows:

(a) there are in existence extradition agreements or treaties embodied in reciprocal statutory provisions, between Namibia and Zambia and between Namibia and Botswana respectively. (See Botswana Extradition Act 18 of 1990, the Zambian Extradition Act, Chapter 94 of the laws of Zambia and the Namibian Extradition Act 11 of 1996).

2. no proceedings were initiated by the Namibian State with the aim of having anyone of the accused persons extradited to Namibia;

2. all thirteen accused persons, with the possible exception of Osbert Likanyi, were prohibited immigrants at the time of their respective arrest;

2. no accused person had been asked by any State witness whether he voluntarily consented to return to Namibia;

2. no State witness had informed any one of the accused persons that he would handed over to the Namibian authorities in order to face criminal charges in Namibia, and in particular on the charge of high treason;

2. no State witness had informed any accused person of the procedures prescribed in terms of Zambian and Botswana immigration law;

2. there is no documentary proof that any accused person had been deported to Namibia neither is there any proof which immigration official or other statutory body ordered such deportation;

2. no accused person had been informed of his right to legal representation.

2. The Namibian Police and Army Officers, prior to receiving the accused persons, had been aware of the fact that the accused persons would face criminal prosecution for specific crimes once returned to Namibia."

It was on these facts together with the evidence led by the state that Mr. Kauta relied to advance respondent's main contention, namely that they were abducted from Zambia and Botswana. I refer particularly to the evidence of Major General Shali, which also forms the basis of the learned judge, a quo's conclusion that there was disguised extradition.

At this juncture I would like also to dispose of Mr. Kauta's argument in reply to Mr. Gauntlet's submission that the court should not, save in most extreme cases, embark on a determination of the lawfulness of actions of functionaries of a foreign State in accordance with the municipal laws of the state as the court a quo did. Mr. Gauntlet described the principle involved in his submission as the "act of state doctrine", and Mr. Kauta's response was that -

"The arrest collection or removal of a person from foreign soil by Namibian authorities is not a matter which falls outside the competence of the Namibian courts because of the act of state doctrine."

I understand this response to subsume that this was done in collusion with Zambian and Botswana authorities. In other words Mr. Kauta maintained that it was proper for the court a quo to determine the legality of actions by functionaries of a foreign state as was done in this case in regard to the deportation of the respondents. That was the thrust of his submission. That a court, in accordance with its municipal law, can inquire into the actions of the state's own agents or functionaries to determine the legality of the role the state played, if any, in securing a fugitive's return goes without saying. The inquiry into the legality of a foreign state's actions within its own territory is another matter. Various decided cases seem to place what, in this case, is alleged to have been done by Zambian or Botswana authorities within the doctrine.

The act of state doctrine was discussed by Lord Reid in Nissan v Attorney-General (1970) AC 179 H.L. (E) at 211-213. His Lordship described it as a 'loose phrase' used to denote various acts; suffice to say that His Lordship did not come up with an "entirely satisfactory' definition of the term. In that case the following passage appears at 217 H-218 E (per Lord Morris of Borth -y-Gest, who also discussed the doctrine):

"In his speech in Johnstone v Pedlar (1921) 2 A.C 262 Lord Sumner (at p 290) said that Buron v Denman (1848) 2 Exch 167 was a case rather of the inability of the court than of the disability of the suitor:

'Municipal courts do not take it upon themselves to review dealings of state with state or sovereign with sovereign. They do not control the acts of a foreign state done within its own territory in the execution of sovereign powers, so as to criticize their legality or to require their justification."

He did also add that:

'What the crown does to foreigners by its agents without the realm is state action also, and is beyond the scope of domestic jurisdiction.'

Lord Kingsdown who delivered the Judgment of the Privy Council in Secretary of State in Council of India v Kamahee Boye Sahaba (1859) 13 Mbo. Pa C.C. 22, 75 had this to say.

'The transactions of independent states between each other are governed by other laws than those which municipal courts administer: such courts have neither the means of deciding what is right, nor the power of enforcing any decision which they may take.'

In Underhill v Hermandez 168 US 250 (1897) 252 the US Supreme Court stated the same principle as follows:

"Every foreign state is bound to respect the independence of every other sovereign state, and courts of one country will not sit in judgment on the acts of the Government of another done within its own territory. Redress of grievances by reason of such acts must be obtained through the means open to be availed by sovereign powers as between themselves."

In Buttes Gas & Oil Co v Hammer and Another (Nos 2 and 3); Occidental Petroleum Corporation and Another V Buttes Gas & Oil Co and Another (Nos 1 and 2) (1981) 3 All ER 616 (HL), at 628 g-j, Lord Wilberforce held that "there exists in English law a more general principle that the Courts will not adjudicate on the transactions of foreign sovereign States. Though I would prefer to avoid argument on terminology, it seems desirable to consider this principle, if existing, not as a variety of 'act of State' but one for judicial restraint or abstention ...In my opinion there is, and for long has been, such a general principle, starting in English law, adopted and generalized in the law of USA, which is effective and compelling in English Courts. This principle is not one of discretion, but is inherent in the very nature of the judicial process.

It would not be difficult to elaborate in these considerations, or to perceive other important interstate issues and/or issues of international law which would face the Court. They have only to be stated to compel the conclusion that these are not issues in which a municipal court can pass. Leaving aside all possibility of embarrassment in our foreign relations (which it can be said have not been drawn to the attention of the Court by the Executive), there are, to follow the Fifth Circuit Court of Appeals, no judicial or manageable standards by which to judge these issues, or, to adopt another phrase (from a passage not quoted), the Court would be in a judicial no man's land: the Court would be asked to review transactions in which four foreign States were involved, which they had brought to a precarious settlement, after diplomacy and the use of force, and to say that at least part of these were "unlawful" under international law. I would just add, in answer to one of the respondents' arguments, that it is not to be assumed that these matters have now passed into history, so that they now can be examined with safe detachment."

See also a discussion of the doctrine in R v Bow Street Magistrates; ex parte Pinochet Ugarte (1998) 4 All ER 897 (at 918-9 per Lord Slynn)

The Court a quo found it necessary to investigate the conduct of the Namibian authorities after finding:

1. That there was not collusion or connivance by Namibian authorities with either Zambian or Botswana authorities to abduct the respondents.

2. That the respondents "were not arrested by the Namibian authorities on foreign soil".

The court then proceeded thus:

"However the issue between the parties before Court cannot be laid to rest on this finding.

I must in addition consider whether the conduct of the Namibian authorities had not been in breach of the principles of public international law. It is therefore in my view important to consider whether the accused persons had been deported as claimed by the State.

It is common cause that no extradition proceedings were initiated by the Namibian authorities.

I remind myself in this regard that the State relying on the fact that the accused persons had been deported must prove same in order to prove the ultimate objective that the accused persons are lawfully before Court and that this Court had jurisdiction to try them."

It is at this point that, in my respectful view, the court went off on a tangent. It did so by initially asking the right question- "whether the conduct of the Namibian authorities had not been in breach of the principles of public international law," but then by going on to lay the wrong premises on which to answer that question, namely: "It is therefore in my view important to consider whether the accused persons had been deported, as claimed by the state." This in my view was the wrong premises first because the state did not claim that the respondents were properly deported whether in terms of Zambian municipal law or that of Botswana; secondly because the inquiry the court a quo went on to make involved the conduct by functionaries of two foreign states acting on behalf of their state within their own territories; thirdly because the allegations that they were unlawfully deported (transported) to Namibia was made by respondents and it was incumbent on them to prove on balance what they alleged. It was they who bore the evidential burden.

In Ocalan v Turkey Ect HR APP No 46221/99 (at p. 325 par 92 the European Court of Human rights stated:

"Independently of the question whether the arrest amounts to a violation of the law of the state in which the fugitive has taken refuge- it must be established to the court 'beyond reasonable doubt' that the authorities of the state to which the applicant has been transferred have acted extra-territorially in a manner that is inconsistent with the sovereignty of the host state and therefore contrary to international law." (See mutatis mutandis, Stocke v Germany (App No 11755/85 12 October 1989 report of the Commission at paragraph 54)

The applicant in that case was arrested by members of the Turkish security police inside an aircraft in the international zone of Nairobi Airport directly after he had been handed over by Kenyan Officials to the Turkish Officials.

In the Stocke case the European Court of Human Rights referred (at Par. 37) to the following statement by three judges of the German Constitutional Court that refused to entertain Stocke's appeal on the grounds it had no prospects of success:

"The court held that there was no rule of international law to prevent a State's court from prosecuting a person brought before them in breach of the territorial sovereignty of another state or of an extradition treaty. It was apparent from American, Israeli, French and British case law that in such an event a court did not decline jurisdiction unless the other state had protested and sought the return of the person concerned. The fact that there were a few decisions in which courts ordered that the proceedings should be stayed was not sufficient to establish a real practice to that effect."

R v Staines Magistrates Court and Others, ex parte Westfallen, R v Staines Magistrates Court and others, ex parte Soper, R v Swindon Magistrates Court and others, ex parte Nangle (1998) 4 ALL ER 216 QBD are cases where applicants were deported from foreign states (Norway and Canada), and were arrested on arrival in the United Kingdom. They alleged that they were brought within the jurisdiction by improper collusion between the Norwegian and Canadian Authorities and the British authorities. Lord Bingham CJ, who delivered the main judgment, reviewed dicta in Bennett v Horseferry Road Magistrates Court (1993) 3 All ER 138, (1994) AC 42 and referred to the fact that when the case was remitted to the Divisional Court the facts were rather different from those assumed by the House of Lords. At 221j-222a, he quoted the conclusion of Lord Justice General (Lord Hope) from the case reported as Bennett v HM Advocate 1995 SLT 510, as follows:

"In his conclusion he said (at 518):

'In our opinion it would be unreasonable where there has been no collusion, to insist that the police must refrain from arresting a person who is wanted for offences committed in this country when he arrives here simply because he is in transit to another country form where he could then be extradited. As Lord McLaren pointed out in Sinclair v HM Advocate (1890) 17R(J) 38 at 43), we must be careful to apply the rules about the transfer and delivery of persons under arrest in a reasonable way. The flouting of extradition procedures by collusion with the foreign authorities is one thing. To allow a person to escape prosecution and punishment for his alleged offences in this country on the ground of the steps taken to arrest him where there has been no such abuse is quite another. It is of course necessary that the petitioner should receive a fair trial if he is to be brought to trial in Scotland, but we are not concerned with that question at this stage. We are concerned only with the question whether to enforce the warrant would be an abuse of the processes of the Scottish court." (emphasis supplied)

His Lordship continued at 222:

"Certain of the cases draw a contrast between official kidnapping and extradition. In R v Governor of Brixton Prison, ex p Soblen (1962) 3 ALL ER 641 at 661, (1963) 2 QB 243 at 302 Lord Denning MR briefly expressed the difference between extradition and deportation. He said:

'So there we have in this case the two principles: on the one hand the principle arising out of the law of extradition under which the officers of the Crown cannot and must not surrender a fugitive criminal to another country at its request except in accordance with the Extradition Acts duly fulfilled; on the other hand, the principle arising out of the law of deportation, under which the Secretary of State can deport an alien and put him on board a ship or aircraft for his own country if he considers it conducive to the public good that that should be done. How are we to decide between these two principles? It seems to me that it depends on the purpose with which the act is done. If it was done for an authorized purpose, it was lawful. If it was done professedly for an authorised purpose, but in fact for a different purpose with an ulterior object, it was unlawful.'

Lord Denning MR was, of course, referring to deportation from this country, but the same approach in principle must apply in the case of deportation to this country, and there must be grounds for objection if the British authorities knowingly connive at or procure an authorized deportation from a foreign country for some ulterior or wrongful purpose.

The question in each of these cases is whether it appears that the police of the prosecuting authorities have acted illegally or procured or connived at unlawful procedures or violated international law or the domestic law of foreign states or abused their powers in a way that should lead this court to stay the proceedings against the applicants." (my emphasis)

Lord Bingham CJ's concluding remarks in these cases are interesting:

"The Norwegians were entitled under their own law to deport these applicant. The propriety of the deportations is acknowledged and indeed could not be challenged. It is difficult to see why the Kingdom of Norway should be obliged to keep the applicants whilst the British applied for extradition if they wished to deport them. It was indeed a natural step for Norway to send the applicants back to where they had come from. There is in the material before us nothing to suggest that the British authorities procured or influenced that decision. It is true that they did not in any way resist it, and there is no reason why they should have resisted it. It is very probable that they welcomed the decision, but in my judgment they would have been failing in their duty as law enforcement agencies if they had not welcomed it. In my judgment there is nothing to suggest any impropriety such as would attract application of the ratio in Bennett v Horseferry Road Magistrates' Court (1993) 3 ALL ER 138, (1994) 1 AC 42 in this case.

So far as the applicant Nangle is concerned, it is relevant to remind oneself that the recommendation to deport him was made at the time of conviction, and that the deportation order was made shortly afterwards. The decision was taken to deport him to Ireland, which is where the applicant wished to go, and the Canadian authorities bought him a ticket to that destination. They chose an obvious route in the absence of a direct flight from Canada to Ireland. There were, as is pointed out, other possible ways by which he could have reached Ireland without travelling through the United Kingdom. But it is not suggested, and could not be suggested, that the flight via Glasgow was in any way contrived or sinister or other than an ordinary route to choose in order to reach that destination. There is nothing whatever to suggest that the British authorities influenced the Canadian authorities to deport or procured the choice of route. Again, they did not resist it and probably welcomed the outcome. But again there is no reason why they should have resisted that decision and no reason why they should not have welcomed it. There was in my judgment no illegality, no violation of international law, no violation of the domestic law of Canada, and no abuse of power." (emphasis mine)

It is not necessary to quote the passages quoted by Hoff J from Bennett's case supra, and from S v Beahan 1992(1) SA 307 (ZS), but only to point out important passages that the Judge omitted. In Bennett's case Lord Griffiths concluded his opinion as follows at p151:

"In my view Your Lordships should now declare that where process of law is available to return an accused to this country through extradition procedures our courts will refuse to try him if he has been forcibly brought within our jurisdiction in disregard of those procedures by a process to which our own police, prosecuting or other executive authorities have been a knowing party." (emphasis mine)

In Beahan's case Gubbay CJ had this to say at 317h -318.

"Upon it being ascertained that the authorities in Zimbabwe were anxious that he be returned to stand trial, he was conveyed in the custody of the Botswana Police to the border between the two countries and voluntarily surrendered to the Zimbabwe Republic Police, who promptly arrested him. That conduct did not constitute a violation of international law for it involved no affront to the sovereignty of a foreign State.

Even if it were assumed that a member of the Zimbabwe Republic Police had interrogated the appellant at the main police station in Gaborone and thereafter requested that he be returned, such action does not avail the appellant. It is irrelevant to the issue.

The immutable fact is that the appellant was recovered from Botswana without any form of force or deception being practised by the agents of this country. The decision to convey him to Zimbabwe was made, and could only have been made, by the Botswana Police in whose custody he was.

Where agents of the State of refuge, without resort to extradition or deportation proceedings, surrender the fugitive for prosecution to another State, that receiving State, since it has not exercised any force upon the territory of the refuge State and has in no way violated its territorial sovereignty, is not abreach of International law. See Morgenstein 1952 The British Year Book of International Law 262 at 270-1; Oppenheim International Law 8^th ed vol 1 at 703. In O'Connell International Law 2^nd ed vol 2 at 834 the matter is put thus:

'The case of a voluntary surrender of the offender, but in violation of the municipal law of the State which makes it, is different from that just discussed (i.e. illegal seizure on foreign territory). Even if the surrender is contrary to an extradition treaty it is still not a violation of international law since no sovereign is affronted, and the offender has no right other than in municipal law.'

The proposition is well supported by authority. In the Savarker case (cited fully in Harris cases and Materials on International Law 3^rd Ed at 233) an Indian revolutionary who was being returned to India from Great Britain under the Fugitive Offenders act of 1881, escaped and swam ashore in Marseilles harbour. A French policeman arrested him and handed him over to the British policeman who had come ashore in pursuit. Although the French Police in Marseilles had been informed of the presence of Savarkar on board, the French policeman who made the arrest thought he was handing back a member of the crew who had committed an offence on board. France alleged a violation of its territorial sovereign and asked for the return of Savarkar to it as restitution. The Permanent Court of Arbitration decided in favour of Great Britain for the following reasons:

'..(I)t is manifest that the case is not one of recourse to fraud or force in order to obtain possession of a person who had taken refuge in foreign territory, and that there was not, in the circumstances of the arrest and delivery of Savarkar to the British authorities and of his removal to India, anything in the nature of a violation of the sovereignty of France, and that all those who took part in the matter certainly acted in good faith and had no thought of doing anything unlawful. While admitting that an irregularity was committed by the arrest of Savarkar and by his being handed over to the British police, there is no rule of international law imposing in circumstances such as those which have been set out above any obligation on the Power which has in its custody a prisoner, to restore him because of a mistake committed by the foreign agent who delivered him up to that Power.'

In the case of Sinclair v H M Advocate (1890) 17R (JC) 38 (conveniently referred to in the judgment of Stephen Brown LJ in R v Plymouth Magistrate's Court and Others: Ex parte Driver (supra at 692f-694j) Sinclair was found in Portugal and arrested by the Portuguese authorities, who had been informed that a warrant had been issued by a Scottish magistrate for his arrest on charges of breach of trust and embezzlement. Although there was no extradition treaty at the time between Portugal and Britain, Sinclair was detained for a month by the Portuguese authorities without any charge being made against him or inquiry instituted or warrant produced. They ultimately placed him on a British ship and he was brought to Scotland. Having been convicted by a court, Sinclair applied to the Scottish Court of justiciary to have the proceedings quashed on the ground, inter alia, that his arrest in Portugal was unwarranted, illegal and oppressive. The application was dismissed. Lord MacLaren, giving one of the judgments, said at 43:

'With regard to the competency of the proceedings in Portugal, I think this is a matter with which we really have nothing to do. The extradition of a fugitive is an act of sovereignty on the part of the state that surrenders him. Each country has its own ideas and its own rules in such matters. Generally, it is done under treaty arrangements, but if a state refuses to bind itself by treaty, and prefers to deal with each case on its merits, we must be content to receive the fugitive on these conditions, and we have neither title nor interest to inquire as to the regularity of proceedings under which he is apprehended and given over to the official sent out to receive him into custody.'

To the same effect is the decision of the Palestine Supreme Court in; anpaYooussef Said Abu Dourrah v Attorney-General Annual Digest 1941-1942 case No 97, in which it was held that once a person has been surrendered he cannot raise any irregularity in the procedure adopted by the surrendering State as a bar to the courts of the requesting State exercising criminal jurisdiction over him."

In the present case the evidence on how each group was handed over to the Namibian authorities has been summarized in counsel's submissions and in Hoff J's judgment. It shows that-

1. The first group (already referred to above illegally entered Zambia and were all apprehended by the Zambian authorities on 18 June 1999, before the incident at Katima Mulilo on August 2, 1999. On 25^th June 1999 Chief Inspector Goraseb Regional Commander of Police of the Caprivi Region went to Zambia (Mongu) to ascertain their presence there and requested the Zambians to heighten their vigilance. On his return he informed the Inspector General of the police. On 6^th August 1999 a Zambian police delegation visited Chief Inspector Goraseb at Katima Mulilo Namibia to say they were aware of the attacks at Katima Mulilo and to seek ways in which they could assist in curbing the problem. On 7th August 1999 Chief Inspector Goraseb was instructed to receive this group at Katima Mulilo. The Zambian Police accompanied the Namibian authorities up to Mpacha Army Base in Zambia with this group. This group had been flown from Lusaka where they had been held in custody at Kamavala Prison. On an unspecified date Major General Shali of the Namibian Army asked the Zambian authority to hand over the people (the suspect) he was looking for. He said the Zambian authorities did exactly what they were asked to do.

2. The second group - the Samboma Group comprised Richard Musuha, Oscar Muyuka Kushaluka Puteho, Richard John Samati and John Sikundeho Samboma. They were handed over according to state evidence at a no-mans-land - a strip of territory between the two countries border posts, on 6^th November 1999. They had been arrested by Zambian authorities as illegal immigrants and held pending a decision to return them to Namibia.

3. The third group was made up of Fred Maemelo Ziezo and Andreas Mulupa. They had also entered Zambia illegally from Botswana. They were handed over to the Namibian authorities at Katima Mulilo (Zambia).

4. The fourth group comprised Charles Kalipa Samboma. He handed himself over to the Zambian Police and expressed regret for what he did. He was seen at Katima Mulilo Police station (Zambia) by Namibian Detective Sergeant Simasiku to whom he complained that he was unhappy in Zambia and stated that he wished to return to Namibia. Despite the allegations in his affidavit (partly reproduced herein) he did not testify in the proceedings before Hoff J. The evidence about his regret and that he was suffering in Zambia and wished to return was thus never challenged.

Two State witnesses a Zambian Police Officer and a Namibian Police Officer gave evidence to that effect.

5. The fifth group comprised Cobert Mwenyi Likanye. He was handed over by Botswana Police Officers to Inspector Goraseb. The handover took place at a Weigh Bridge. He had been arrested in Botswana.

The court a quo came to the conclusion that "twelve of the accused persons are before this court through a process of disguised extradition and that in respect of Charles Samboma, there was no proper consent."

This conclusion is based on the fact that Hoff J was "not persuaded that the evidence before me in any way proves that anyone of the twelve accused had been deported form Zambia or Botswana to Namibia in compliance with the relevant statutory provisions of those countries. As regards Charles Samboma the conclusion was based on the following statement by the court a quo:

"It is clear from the evidence that the Police Officer who offered him this lift knew beforehand that (Osbert Likanyi) (sic) was wanted by the Namibian Police on a charge of high treason.

He conveniently failed to inform him of the fact that he would certainly be arrested and would face criminal prosecution once inside Namibia on a charge of high treason.

By his silence he deceived (Osbert Likanyi) (sic) in believing that he was not wanted by the Namibian Police.

This was nothing else but a stratagem to get Charles Samboma in Namibia and cannot be regarded as consent in the legal sense of that word and is unlawful."

As to the courts' conclusions regarding Charles Samboma it is my view that the conclusion was not warranted by the evidence because Charles Samboma was not called to dispute the evidence of Simasiku, namely-

"I came back to Charles Samboma, I greeted him for the second time by shaking his hand. I further told him 'so you are also here.' He said 'Yes but I want to go back to my country' I said 'Why do you want to go back to your country.' He said he is suffering in Zambia and he is in Zambia since the 2^nd of August 1999 so he want to be joined with is family. I further informed Shipango that the colleague seated in their office or Charles Samboma seated in their office wants to go with us to Namibia. Deleclute Sergeant Shipango said we could come up with him to Namibia for the fact that they've got nothing to do with him and he is not arrested by them. We drove myself Sergeant Popyeninwa and Charles Samboma in the same vehicle POL 5545 through Wenela Border Post to Katima Mulilo at our Police station. At the time of leaving Zambia I did not arrest Charles Samboma. I gave him a lift as a passenger -----"

In cross-examining Simasiku counsel put to him certain allegations, Samboma would say in evidence; it was, however, never put to Simasiku that Charles Samboma would deny the above evidence. Nor was Charles Samboma called to deny the evidence of the Zambian Police Officer Detective Sergeant Dick Shipango who testified:

"I asked this man 'what can I help you with' this man said, 'I'm handing myself over to the law'----I asked him 'what do you mean handing yourself over to the law?'----he said, 'I'm a Namibian."----I regretted what I did, so I want to hand over myself. 'I have regretted what I had done, I want to hand over myself."

And further:

"He said, 'I am suffering in the bush. I myself I'm suffering my children are suffering and my wife. So I have regretted what happened on 2^nd August."

Later Shipango testified:

"We told them (Simasiku & Popyenawa) 'there is your fellow Namibians, you can go with him."

Simasiku's further evidence in cross-examination was that he arrested Samboma not as soon as they entered Namibia 'but it was later after further interrogation with him.' The record of the proceedings shows that Shipango was not even cross-examined by Mr. Kauta. In light of this evidence I find it incomprehensible that the court a quo could come to the conclusion that Simboma did not consent to come back to Namibia, let alone that he was deceived to believe that he was not wanted by the Namibian Police.

In addition to what the learned judge a quo said about the "twelve of the accused being before this court through a process of disguised extradition", he went on later in the judgment to link Namibia with that process by saying (before discussing the issue):

"In my view on the facts of this case, the deportation of twelve of the accused persons (the exception is (Charles Samboma) was indeed a disguised extradition. Major General Shali requested his counterparts in Zambia to immediately hand over specific fugitives they were looking for and according to his testimony the Zambians did exactly what they were asked to do."

This link led the learned judge to his ultimate conclusion namely:

"In my view the protest by the Namibian authorities that they had no part in irregularities which occurred during the deportation procedures in Zambia and Botswana, in itself, cannot come to their rescue since their own initial conduct, by informally requesting the handing over of fugitives and thus bypassing formal extradition proceedings tainted those very deportation proceedings they now want to put at a distance. Even if one accepts, in favour of the State, that the accused persons had been arrested by the respective neighbouring authorities, a decision had not been taken and they had not been deported until some time after the Namibian authorities had requested their return." (my underlining)

I go along with appellant's counsel's submission that the court a quo erred both in fact and in law in reaching its conclusion that the acts of the Namibian authorities in securing the return of the respondents were tainted, more particularly given the fact that the court concluded that no conspiracy or connivance was established between Namibian authorities and Zambian or Botswana authorities. This is so because the evidence does not establish that either Botswana or Zambia rendered the fugitive respondents because of the request by Mayor General Shali; no causal link is shown to have existed between the request and the handing over of the respondents by Zambia or Botswana. The inference sought to be drawn by respondents' counsel from the evidence, and drawn by the court a quo, from the fact that some of the respondents had been arrested by respective neighbouring countries authorities and a decision had not been taken and they had not been deported until after the Namibian authorities had requested their return, is not warranted on a proper review of the evidence. While it is clear that the request by Major General Shali took place after the attack on August 2, 1999 the court a quo itself puts no date to the request, nor could Mr. Kauta for the respondents when specifically asked if he could do so during his oral submission before this court. Major General Shali's evidence that:

"I did exactly what I was supposed to do in my capacity as Army Commander to immediately contact my counterparts on the other side of the border and ask them to immediately hand over the group of terrorists that I was looking for because I wanted them to be brought to book.",

cannot be read in isolation, it must be read in the context of the totality of his evidence and that of other State witnesses on the issue. His evidence starts where, in chief, he was asked to explain how it happened that certain people were handed to the Namibian authorities and he answered:

"It was simple, simple in the sense that Zambian authorities informed us that they have, they are holding people we were looking for as a result of which the Zambian authorities decided to hand them over to the Namibian authorities and at no stage did we cross the Zambian border."

He was again asked, "As a result of the information from Zambia what did you do? And he answered:

"I did exactly what I was supposed to do. To get in charge (touch) with my counterparts on the other side of the border and immediately asked them to immediately to hand over those group of terrorists that I was looking for and for them to be brought to book as we are witnessing today."

In cross-examination he insisted that at no stage did the Namibian authorities cross the border to arrest the fugitives. More importantly he stated, when asked if extradition was requested:

"Your Honour I'll repeat that. I said there was no need to ask for extradition because as far as the Zambian authorities are concerned, they were holding illegal immigrants whom they were ready to deport to Namibia. As for as we were concerned, this is a group of terrorists that we so badly wanted to apprehend."

Asked what authority in law the Namibian authorities had to cross the border and arrest Nationals in Zambia, he said:

"We did not cross the borders, even if it was few meters, to arrest these people. We were not pursuit, it not an operation. The Zambians were simply saying: "We are here, we have the people you're looking for, come and collect them", and that's what we did. Now what law have we broken? What law? What act according to the Namibian Constitution or indeed that of Zambian, have we broken?"

and again:

"Let me try to clarify this once more, to say that the purpose, there are two things here, these are terrorists who are wanted here in Namibia for crimes they have committed. Now they were in the hands of the Zambian authorities who wanted to deport them as illegal immigrants and the Zambian authorities asked us to go and collect them and they were only arrested after they were on the Namibian territory."

And further, asked if the police collected them before they were deported, he stated:

"Nowhere in the law does it state that a person have to be deported only on the borders. He could be deported right from international airports in the centre of that particular territory.

"INTERPRETER: Sorry, can he repeat his (intervention)---- 'Ja, I will repeat that. I was saying that we went there to collect them during the process of deportation, that's why I've mentioned to you to say that these are people who had no choice in any case they had to be returned to Namibian authorities in any case, whether it was legal, because they (were) in Zambia illegally and the law does not say that the person has to be deported form point A to point B of the country, it can be anywhere."

Lastly he clarified:

Yes, please. ----Okay. I said I don not know how much you know of deportation processes. Before you deport any person or a group of them, you communicate a list. It was when we got the list that we realised that on that list indeed were this group of people we're looking for and mind you, these were not the only people on the deportation list, there were a lot more, but these were the only ones that were on our terrorist list. (all underlining mine)

In the course of that cross-examination Shali also denied that he and his "counterparts" (in Zambia) had planned and prepared that the respondents "must be arrested as illegal immigrants and deported back to Namibia.

Colonel Henry Kaleji of the Zambian Defence Force was asked about connivance between Zambia and Namibian authorities. He answered Mr. Kauta as follows:

"All the actions which I took were not influenced by any external authorities. We arrested them because they were a threat on our side and that was one of my functions as Regional Commander to protect the security of the country."

According to Kaleji's evidence under cross-examination it was a Zambian decision to hand over the respondents in the first three groups to Namibia. In cross-examination Kaleji's evidence went as follows:

"The western side of Zambia is inhabited by Lozi's as well. Is that correct? ----That's very correct, My Lord."

And in that region there has always been political tension with respect to the Lozi's. Is that correct? ----That's correct, My Lord.

As a senior ranking officer in the Army you knew full well that what happened or what is alleged to have happened in Katima Mulilo in Namibia could have very well happened in western Zambia. Is that correct? ----That's correct, My Lord.

There has been, will I be correct to say there has been propagation especially among the Lozi's and western Zambia for self-determination? ---My Lord, that self-determination was not very serious for us in the Army Forces to take it seriously.

But it is nevertheless there. I'm talking about in western Zambian, your region. ---Yes.

Can you say that again? Is your answer yes? ---Sorry, can you say it again?

I am saying, nevertheless this issue of self-determination by Lozi's and western Zambia is there? ---Well, I said so, yes. I would say (no)."

Mr. Mundia, a Zambian Immigration Officer at Katima Mulilo (Zambia) was cross-examined as follows:

"Now, Mr. Mundia, one last aspect. As an Immigration Officer do you have knowledge of any specific Namibian person that caused problems in the region where you were or in Zambia? ---My Lord, yes.

Do you have a name? --- I wish not to mention names here for security purposes. But I would like to elaborate that what was happening on the Caprivi Region was also taking root in the western province of Zambia. And as an Immigration Officer who is an integral part of security in my country would not allow the foreigners to come and infiltrate my area to cause similar problems. Easier (inaudible) in the bud than later.

As an officer, security officer, you say you were unhappy with the spill-over effect that any secession may have in Caprivi to the Western Province in Zambia? ---That's right."

These questions by counsel in cross-examination of course arises as an acknowledgement of the fact that the state of insecurity in that border area between Zambia and Namibia, arising from secessionist aspiration or both sides of the border was notorious, and, looked at in proper context, would explain why the Zambian authorities were eager to cooperate with their Namibian counterparts and, on their own accord, to take the decision to hand over the three groups of fugitive Namibians found on their territory which they entered illegally and carrying arms. The fact that Kaleji eventually said he would not dispute Shali's evidence (already quoted) is colourless. The statement was not made to him. The cross questioning of him on that evidence also lacks any specificity as to dates and as to which Zambian counterparts the request was directed. The list of people being deported from Zambia prior to Shali's request would have been provided in the spirit of the cooperation between the states in security matters. On this evidence I do not agree when the court a quo says: "The 'deportation' of twelve of the accused persons was clearly preceded by a request from officers acting of behalf of the Namibian State and it cannot with any conviction be argued that the Zambian authorities acted unilaterally when they deported the Namibians."

Be that as it may, in R v Brixton Prison (Governor) ex parte Soblen (1962) 3 ALL ER 641 in discussing the law of deportation Lord Denning M.R. said the following (at 660 H - 661 F):

"It was suggested before us that there was a common law shackle on this power of deportation. It was said that a man could not be deported even to his own country, if he was a criminal who had fled form it. No authority was cited for this proposition. It cannot stand examination for one moment. Supposing no other country but his own is willing to take him. Are we to keep him here against our will simply because he is, in his own country, a wanted man? Clearly not. If a fugitive criminal is here, and the Secretary of State thinks that, in the public good, he ought to be deported, there is no reason why he should not be deported to his own country, even though he is there a wanted criminal. The Supreme Court of India considered this very point in 1955 in Muller v Superintendent, Presidency Jail, Calcutta (54) and in an instructive judgment made it quite clear that in their opinion, the right to expel an alien could be exercised even though he was wanted by his own country for a criminal offence. I go further. Even though his home country has requested that he should be sent back to them, I see no reason why the Home Secretary should not still deport him there, if his presence here is not conducive to the public good. The power to deport is not taken away by the fact that he is a fugitive from the justice of his own country, or by the fact that his own country wants him back and has made a request for him.

So there we have in this case the two principles: on the one hand the principle arising out of the law of extradition under which the officers of the Crown cannot and must not surrender a fugitive criminal to another country at its request except in accordance with the Extradition Acts duly fulfilled; on the other hand the principle arising out of law of deportation, under which the Secretary of State can deport an alien and put him on board a ship or aircraft bound for his own country if he considers it conducive to the public good that that should be done. How are we to decide between these two principles? It seems to me that it depends on the purpose with which the act is done. If it was done for an authorized purpose, it was lawful. If it was done professedly for an authorised purpose, but in fact for a different purpose with an ulterior object, it was unlawful. If, therefore, the purpose of the Home Secretary in this case was to surrender the applicant as a fugitive criminal to the United States of America, because they had asked for him, then it would be unlawful; but if his purpose was to deport him to his own country because he considered his presence here to be not conducive to the public good, then his action is lawful. It is open to these courts to inquire whether the purpose of the Home Secretary was a lawful or an unlawful purpose. Was there a misuse of the power or not? The courts can always go behind the face of the deportation order in order to see whether the powers entrusted by Parliament have been exercised lawfully or not. That follows from R. v Board of Control, Ex p. Rutty (55). Then how does it rest in this case? The court cannot compel the Home Secretary to disclose the material on which he acted, but if there is evidence on which it could reasonably be supposed that the Home Secretary was using the power of deportation for an ulterior purpose, then the court can call on the Home secretary for an answer; and if he fails to give it, it can upset his order. But, on the facts of this case, I can find no such evidence. It seems to me that there was reasonable ground on which the Home Secretary could consider that the applicant's presence here was not conducive to the public good." (my underlining)

This passage, and indeed the state of the evidence on the deportation enquiry undertaken by the court a quo in this case, highlights the futility of a municipal court attempting to pass judgment on the actions of a foreign state; it calls to mind the warning given by Lord Oliver in his dissenting opinion in Bennett's case (supra) (at 157 e-g):

The appellant invites this House now to say that the decision in Ex p Mackeson is to be preferred and that a criminal court's undoubted jurisdiction to prevent abuses of its own process should be extended, if indeed it does not already extend, to embrace a much wider jurisdiction to oversee what is referred to generally as 'the administration of justice', in the broadest sense of the term, including the executive acts of law enforcement agencies occurring before the process of the court has been invoked at all and having no bearing whatever upon the fairness of the trial.

I have to say that I am firmly of the opinion that, whether such a course be properly described as legislation or merely as pushing forward the frontiers of the common law, the invitation is one which ought to be resisted. For my part, I see neither any inexorable logic calling for such an extension nor any social need for it; and it seems to me to be a course which will be productive of a good deal of inconvenience and uncertainty." (emphasis supplied)

That was said with reference to "executive acts of law enforcement agencies of the United Kingdom. But the statement acquires more force when applied to "executive acts of law enforcement agencies" of a foreign state (it must also be recalled that the majority decision in Bennett's case was based on an assumption of the facts which in the later Bennett's case were found to be rather different from what was assumed.

In his oral submissions before us Mr. Kauta persisted with the argument, rejected by the court a quo, that 12 of the respondents were abducted. He said that the respondents case before the court a quo and before this court, "rest squarely and (is) on all fours (with) S v Willem. One only need to look at the facts in both cases to note the very important difference in the conduct of the police concerned respectively in the two cases. The head note in S v Willem 1993 (2) SACR 18(E) correctly summarises what transpired in that case; it reads (as to the facts), P18 h-19:

The accused were charged in a Provincial Division with a number of offences including murder, robbery with aggravating circumstances and theft. The accused entered a plea in terms of s 106(1)(f) of the Criminal Procedure Act 51 of 1977 that the Court had no jurisdiction to try them as they had been apprehended in Ciskei and then brought to South Africa against their will. The evidence showed that accused No. 2 was arrested in Ciskei by members of the Ciskei Defence Force. The fact of his arrest was conveyed to the South African Police who proceeded to Ciskei where they found accused No. 2 at a police station. They informed him that he was a suspect in a murder case in South Africa and asked him whether he wished to go with them to South Africa. He was told that if he did not do so he would be kept in custody in Ciskei and a request would be made for his extradition.

He was not informed of the nature and content of extradition proceedings in the Ciskei. Accused No. 2 indicated that he was willing to go to South Africa and the Ciskei police released him into the custody of the South African Police. On the following day accused No. 2 was taken back to Ciskei where he pointed out the homes of accused Nos. 1 an d3 who were arrested by a member of the Ciskei police at their respective homes. The arrests took place with the assistance of the South African Police. Both accused Nos. 1 and 3 were similarly informed that they were suspects in a murder case in South Africa and were asked whether they wished to return with the South African Police to South Africa, failing which they would be kept in custody in Ciskei pending extradition proceedings. Neither was informed of the nature and content of the extradition proceedings. Both elected to go the South Africa. (my emphasis)

One important difference between these facts and the facts in the present case is that no Namibian police officer took part in the arrest of any members of the first to the third group in Zambia or of Likanye in Botswana. As to the request by Shali no causal link was established before the court a quo between the request and the handing over. All the actions taken by Zambia or Botswana in handing them over to the Namibian authorities was in the spirit of cooperation between (in the case of Zambia at least) two States faced with a situation that could have political and security repercussions on both sides of the border. All the decisions of deporting the concerned respondents in this case were taken by the Zambian and Botswana authorities without any influence form the Namibian authorities; alternatively it has not been shown that in taking the decision to deport, either the Zambian or the Botswana authorities were influenced by the Namibian authorities.

The court a quo seems to imply, by undertaking the inquiry into the legality of the deportation procedures used by Zambia or Botswana, that the Namibian authorities had an obligation in international law to underwrite the legality of the actions of a foreign state. I am not aware of any rule of international law that imposes such an obligation, and no authority to that effect has been brought to the attention of this court. In this connection see S v. Rosslee 1994(2) SACR 441 (C) especially at pp. 4461i - h, 449f - 450h and 450e - h and Beahan's case, which Mr. Kauta sought to distinguish.

The important point that clearly emerges from cases such as R v Bow Street Magistrates, Ex p. Mackeson (1981) 75 CT App R 24 Bennett's case (supra), S v Ebrahim 1991 (2) SA 553(A), R v Hartley (1978) 2 NZLR 199 and Beahan's case (supra) is that the court will exercise its power to decline jurisdiction where the prosecuting authorities, the police or executive authorities have been shown to have been directly or indirectly involved in a breach of international law or the law of another state or their own municipal law. In Prosecutor v Dragan Nikoli case No. 94-2-PT the Trial Chamber of the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law committed in the Territory of the former Yogoslavia since 1991, discussed the principle 'male captus bene detentus' as applied or formally applied in various jurisdiction. The cases cited or referred to in that discussion also illustrate the point above in jurisdictions that have moved away from that principle. (See para 75-93.) In that case the Trial Chamber held that misconduct, by somebody other than the prosecution did not form a basis of a successful challenge to the jurisdiction of the Tribunal.

It is interesting that the Appeal Chamber in the Prosecutor v Dragan Nikolic case No. IT -94-2 AR 73, Decision on Introducing Appeal Concerning Legality of Arrest 5 June 2003 upheld the above decision and further held that even if the activities of the abductors could be attributed to the UN Officers (as the defence had argued in the Chamber below) this by itself would not remove the Tribunal's jurisdiction to hear the matter. In doing so the Appeal Chamber balanced the rights of the accused against the crimes committed as follows:

"the damage caused to international justice by not apprehending fugitives accused of serious violations of international humanitarian law is comparatively higher than the injury, if any, caused to the sovereignty of a State by a limited intrusion in its territory, particularly when the intrusion occurs in default of the State's cooperation. Therefore, the Appeals chamber does not consider that in cases of universally condemned offences, jurisdiction should be set aside on the ground that there was a violation of the sovereignty of a State, when the violation is brought about by the apprehension of fugitives form international justice, whatever the consequences for the international responsibility of the State or organization involved."

The same approach was indicated in Ocalan v Turkey supra at par. 90 P3249-325 where the European Court on Human Rights remarked:

"As regards extradition arrangements between states when one is a party to the convention and the other not, the court considers that the rules established by the states concerned are also relevant factors to be taken into account for determining whether the arrest that has led to the subsequent complaint to the court was lawful. The fact that a fugitive has been handed over as a result of co-operation between states does not in itself make the arrest unlawful or, therefore, give rise to any problem under art 5 (see, to the same effect, Freda v Italy (App no. 8916/80) (198