On Friday, the FMO’s advocate, Max du Plessis, argued that there was still no certainty that Mozambique would prosecute Chang as there were lingering suspicions that he might still enjoy immunity from any actions he had taken as a minister and member of...
On Friday, the FMO’s advocate, Max du Plessis, argued that there was still no certainty that Mozambique would prosecute Chang as there were lingering suspicions that he might still enjoy immunity from any actions he had taken as a minister and member of Parliament.
The memorandum, drafted in July 2020 was based on the opinions of five anonymous legal experts from South Africa and Mozambique. Their main argument was that although Chang was no longer an MP and so no longer enjoyed immunity for anything he might have done since ceasing to be an MP, it was not clear whether or not he also no longer enjoyed immunity for what he did when he was still an MP – and a minister.
Du Plessis told the court that this July 2020 memorandum was not in the papers which Lamola’s legal team had originally filed in this case at the end of August. They only filed it after the FMO lawyers had discovered a reference to it in an email.Though Lamola’s team claimed they had “inadvertently” failed to file the memorandum, the FMO said the obvious reason they had not done so was because “it destroys their case”.
Du Plessis said Lamola had presented no other written documentation or explanation in the record to justify his decision to extradite Chang to Mozambique. And he had filed the reasons for this decision days after filing the rest of the court record. The only conclusion one could draw was that Lamola had “retrofitted” these reasons to his decision, Du Plessis said. headtopics.com
For this reason, the court should judge the decision to be irrational and unlawful, and should annul it. In November 2019, the high court sent minister Masutha’s decision to extradite Chang to Mozambique back to Lamola to reconsider. But in court on Friday, Du Plessis and the FMO asked Judge Victor to issue a court order that Chang should be extradited to the US.
Du Plessis said the July 2020 memorandum made it clear that Lamola and his top advisers all really believed that Chang should be extradited to the US and had presented no justification for the decision to extradite him to Mozambique. There were no new facts in the case and so no reason to remit the decision to Lamola.
Advocate Sesi Baloyi, representing Lamola, argued against this, saying it would violate the principle of the separation of powers if the court usurped the justice minister’s prerogative to decide where to extradite Chang. And she told Judge Victor that she could only issue an order that Chang should be extradited to the US if she had established the relevant objective facts of the case, such as that Chang still enjoyed immunity from prosecution in Mozambique and that the Mozambican government had acted in bad faith by insisting he longer enjoyed immunity.
And she argued that Lamola had been entitled to act against the advice of his senior advisers, though Du Plessis retorted that Lamola himself had signed this advice and so had endorsed it.William Makhori, representing the Mozambique government, noted that Maputo had issued two arrest warrants for Chang, in January 2019 and February 2020, and an indictment against him in November 2020. It had also begun investigating Chang in the Hidden Debts case as early as 2015, when it had sought legal assistance from the US and others. headtopics.com
And so there was no reason to doubt its word that it intended to prosecute Chang. And he said the FMO’s South African lawyers did not know enough about Mozambique law to question the sincerity of these arrest warrants and the indictment. The FMO had raised doubts about the indictment, noting that even Mozambique itself had acknowledged that it was provisional until it had been served on Chang. The FMO lawyers also suggested that the fact that Mozambique had decided to issue a second arrest warrant in February 2020, raised questions about the validity of the first warrant issued in January 2019.
And the January 2019 warrant was the only one Lamola had before him when he made his decision to extradite Chang to Mozambique as the February 2020 warrant only came to light later, the FMO said.Makhori said if Judge Victor did decide to order Lamola to reconsider his decision to extradite Chang to Mozambique, she should only do so with clear guidelines and timelines so that Chang did not spend another extended spell in prison.
Makhori also dismissed FMO’s argument that Lamola had “retrofitted” the reasons for his decision to extradite Chang to Mozambique. He said just as a judge did not have to offer her reasons for her judgment simultaneously with the judgment, so a minister did not have to provide simultaneous reasons for his decisions and need only provide them on demand.Read more: Daily Maverick »
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