OF SOUTH AFRICA
CCT _____________
SCA CASE NO: 19/2014 SGD CASE NO: 5594/2011
In the matter between:
HENRY EMOMOTIMI OKAH APPLICANT
And
THE STATE RESPONDENT
ANSWERING AFFIDAVIT
I, the undersigned:
MARIUS VAN HUYSSTEEN
Do hereby make oath and state:
THE RESPONDENT
1. I am an adult male attorney and partner practicing as MCMENAMIN VAN HUYSSTEEN AND BOTES INCORPORATED at number 528 Jorissen Street, Sunnyside, Pretoria.
2. I am duly authorized by the Respondent, as his attorney, to depose to this affidavit in opposition to the Applicants’ application.
3. The facts deposed to in this affidavit are within my personal knowledge and belief unless otherwise stated, and are both true and correct. The legal submissions are advanced on the basis of my own qualification and experience and those of Respondent’s counsel.
4. I became the Respondent’s attorney of record after his conviction in the South Gauteng High Court. I was mandated to bring an application in terms of Section 317 of the Criminal Procedure Act, Act 51 of 1977, to attend to sentencing procedures and to bring an application for leave to appeal against the conviction.
5. I instructed Advocate JP Marais to act on behalf of the respondent during those proceedings.
6. After the section 317 Application was refused by the Honorable Justice Claasen, the Supreme Court of Appeal was unsuccessfully petitioned.
7. After the appeal was granted, my mandate was terminated and the firm PI URIESI ATTORNEYS in Bryanston, Johannesburg was instructed to deal with the appeal.
8. The Respondent’s appeal was partially successful in that the Supreme Court of Appeal set aside the conviction of Counts 1, 3 , 5 and 7 (the Warri bombings) on 3 October 2016.
9. During February 2017 the Respondent terminated PI URIESI ATTORNEY’S mandate and again required me to represent him. This required a visit to the
Respondent who was incarcerated in the Kokstad Maximum Security Correctional Facility, in Kwa Zulu-Natal.
10. The Respondent has been in custody since 1 October 2010 and suffered severe financial constraints. He had to rely on the goodwill of donors in Nigeria, to a large extent, to fund his appeal and further legal actions. His financial position was so dire that I could only pay counsel’s account for the appeal in the Supreme Court of Appeal in March 2017 after I had been placed in funds.
11. After I had been placed in funds, I could only start looking for suitable Senior Counsel to assist the Respondent.
12. Counsel started drafting the papers during the recess and met with Roux SC on 15 April 2017 to discuss the drafts.
13. I, in the meantime, was in Europe from 10 April 2017 and only returned to the Republic on 5 May 2017 where after this affidavit could only be finalized after a consultation was held with the client on the 17 May 2017 at Kokstad Maximum Security Correctional Facility.
14. This consultation was arranged for the 17 May 2017, after flying from Pretoria to Margate where I was required to rent a car for the journey to the Ebongweni Maximum Security Facility.
15. Due to delays created by road works along the route to the prison I was forced to merely hand the Submissions regarding his Constitutional Court Appeal as well as the Affidavit that will be used in the Section 317 application (both of which had been drafted by Advocate JP Marais and settled by Barry roux SC) to respondent so that he could peruse the same. This was due to the fact that the delays had resulted in a mere 10 mins remaining of the allotted one hour consultation time in terms of the facility rules. This necessitated me having to arrange overnight accommodation for myself as well as my Personal Assistant in order to arrange and attend at such short
notice a follow up consultation for the 18th May 2017. I furthermore had to re- arrange our return flights and incur further additional costs in attempting to consult with the Respondent properly.
16. In addition to the delays described above the Respondent had worked through the documents overnight and provided me with a lengthy and very descriptive set of comments/notes on the documents which had been provided to him. He furthermore provided additional instructions for me to bring an application for his transfer to a more feasible facility located in the Gauteng area as well as instructed me regarding the opposing of an Asset Forfeiture application currently being sought against him by the State.
17. In this regard a letter was transmitted to the National Commissioner on the 28th June 2017 to formally request a transfer of the Respondent to a more local facility whereby I will be able to consult with him as regularly as needed and carry out my instructions diligently. I attach the same hereto and mark it Annexure “MVH1”.
18. The comments and notes I received from the Respondent were sent to Counsels for their consideration thereof and to allow the necessary amendments to be made. Both Counsels however were involved in Trials at time of sending and only managed to attend to them once they had finalized their respective trials. Barry Roux SC required the assistance of Advocate JP Marais due to the fact that he had been involved in the matter since its inception, Advocate JP Marais is currently still attending to the trial of Radovan Krejcir & others which is currently still underway in the Johannesburg High Court.
19. Advocate Marais after considering the comments and notes and making the necessary changes informed me that the papers were completed and ready to be filed with the Court, preparations therefore had to again be made for the Respondent to attend to the signing of all relevant documentation at the Ebongweni Facility whilst in the presence of a commissioner of oaths. These arrangements were made with a legal aid attorney named Lindsay Natier
whom scheduled an appointment to see the Respondent on the 29 June 2017 for the signing of the same after which they were couriered back to us thereafter.
20. The respondent remains reliant on donations from family members and friends all of whom live abroad for the funding of his litigation, the funds come directly from Nigeria which themselves are currently experiencing economic hardships of a recession. Due to the foreign nature of the funds extra delays are necessitated with every single transaction.
21. It had at all times been the Respondent’s intention to oppose the application, but due to his dire financial position, my absence from the Republic, and the Client being in Kokstad to consult, caused the inevitable delay.
22. I humbly pray that the late filing of the opposition, answering affidavit and submissions be condoned since there is no prejudice for the Appellant as the matter is only on the role for 1 August 2017.
23. AD THE FIRST GROUND OF APPEAL
I submit that the Supreme Court of Appeal’s interpretation of Section 1(1)(xxiii) of Act 33 of 2004, “specified offense” are in accordance with the provisions of the act. Had the Legislature intended the interpretation of the Applicants advocate, “with reference to section, 4, 14 (in as far as it relates to section 4) and section 23” would not have formed part of the definition.
24. AD THE SECOND GROUND OF APPEAL
I submit that the intention of the Legislature, as far as section 15(1)(b) was quite clear and that the Supreme Court of Appeal had correctly interpreted the sub section. Section 15(1)(a) read with section 1(1)(xxiii) deals with the financing of terrorist activities, wherever it might occur. The Supreme Court of Appeal did not pronounce on the applicability of subparagraph (b) of the definition of “specified offence” since neither party suggested that in found
application in the present case. Section 15(1)(b) specifically states that a Court will have jurisdiction in South Africa if the act took place in or on South African territory by a citizen/resident against the Republic/Citizen/Resident in an attempt to compel the Republic to do or abstain from doing something.
25. AD THE THIRD GROUND OF APPEAL
Section 15(2) caters specifically for a different person than subsection (1).
Section 15(2)(a), (b) and (c) must, as the Supreme Court of Appeal had correctly found be conjunctively so as not to infringe the rules of international comity. Terrorism is not a universal crime as provided for in the Rome Statute and therefore a bona fide connection between the subject matter and the source of the jurisdiction must exist.
26. AD THE FOURTH GROUND OF APPEAL
The governing principle is aut dedere aut punire. In the instant case the Federal Government of Nigeria chose not to apply for extradition. It is submitted that b convicting the Respondent on Counts 2,4,6,8,10 and 12, where South African interests were not at stake, the court did exercise universal jurisdiction over “terrorist activity” as defined in Section 1(1)(xxv)(i- vii), (b)(ii-iii) and (c) of the Act.
27. AD THE FIFTH GROUND OF APPEAL
The Supreme Court of Appeal correctly found that Section 15(1)(a) provided for universal jurisdiction, when financing of terrorist activities are concerned, wherever it may occur.
28. CONSTITUTIONAL ISSUES AND POINTS OF LAW OF GENERAL PUBLIC IMPORTANCE
It is submitted that the Supreme Court of Appeals judgement merely deals with the interpretation of sections of Act 33 of 2004. It does not raise issues of general public interest, interests of justice or constitutional matters. It is not for this Honorable court to rewrite the Act to accord with the Applicant’s contention. The Supreme Court of Appeal correctly found that it was not within its province to question legitimate policy choices made by the Legislature.
29. PROSPECTS OF SUCCESS
I respectfully submit that there are no reasonable prospects of success of an appeal.
30. CONCLUSION
I respectfully pray for an Order as set out in the Notice of opposition.
SIGNED AND SWORN TO AT PRETORIA on this _________day of________ 2017.
______________________________
DEPONENT (M VAN HUYSSTEEN) By the deponent who has stated:
a. That he knows and understands the contents of this affidavit b. That the contents of this affidavit are both true and correct.
c. That he has no objection to taking the prescribed oath; and
d. That he regards the prescribed oath as binding on her conscience.
Before me,
COMMISSIONER OF OATH ________________________
SIGNATURE ________________________
FULL NAMES: ________________________
AREA: ________________________
CAPACITY: ________________________
BUSINESS ADDRESS: ________________________
________________________
