Should South Africa's top court hear a torture dispute implicating Equatorial Guinea's vice president?

Teodorin Obiang, vice president of Equatorial Guinea (EG), a country regarded as one of the most corrupt in the world, wants South Africa’s top court to halt a R70m legal claim being brought against him there. The claim, by a South African businessman, is for damages relating to his wrongful arrest and detention in EG between 2013 – 2015, under conditions so appalling that they amount to torture under international law. Obiang is asking the Constitutional Court to hear his challenge to a decision of a full bench of the high court in SA after three judges said the damages claim against him could go ahead.

Read the full bench decision

 

South African businessman and consultant Daniel van Rensburg has done business in Equatorial Guinea (EG) over more than 20 years, helped by his fluency in Spanish, one of the main languages spoken in EG.

 

Among his contacts there he counted a prominent member of the EG political elite, Gabriel Mba Bela, also known as ‘Angabe’, who is an uncle of Teodorin. During 2012 Angabe asked van Rensburg to help set up an airline company in EG. Angabe was to be the major shareholder and financier of the company and van Rensburg was asked to deal with the administration and to source two aircraft. In terms of a written contract between the two men, van Rensburg was to be paid a fee to arrange the admin related to ‘Coriscair’, as the proposed airline was to be called.

 

Passport

In 2013, van Rensburg travelled to Malabo to meet with Angabe about various issues related to the project. When he arrived, however, he was made to hand his SA passport to Angabe, ostensibly so that a work visa could be arranged, and Angabe then left the country for a fortnight.

 

When he returned it became clear that Angabe wanted to scrap the Coriscair plan as he had apparently been unable to raise the finance needed. He called a meeting with van Rensburg and demanded repayment of all the money advanced under their contract. Van Rensburg said he was not prepared to give back the money as Angabe had reneged on their contract and much of the funds had in any case been spent on work needed to get the project off the ground.

 

Post-traumatic stress

This was the start of two years of harassment, violence and unlawful detention apparently aimed at forcing van Rensburg to repay the money. The details read like the plot of a film not for viewing by anyone suffering from post-traumatic stress disorder. Indeed, van Rensburg claims that he has been left with PTSD as well as serious physical problems, all resulting from the treatment he experienced during those two years.

 

Van Rensburg claims that when he first refused to refund the money Angabe had given him to set up the airline, Angabe called someone who could only have been Teodorin. That call led to the arrival of police belonging to EG’s Rapid Intervention Force. They took van Rensburg to a local prison and a day later he was again faced with demands that he repay the contract money.

 

Over the next two years the pattern was repeated, with van Rensburg facing demands for refund of money paid him in terms of the contract, followed by lengthy periods of detention under horrific conditions in EG jails. He also appeared before at least two judges, one of whom said there was ‘no case’ against van Rensburg.

 

Fraud

After that appearance, however, instead of being freed to return home, van Rensburg found that charges of fraud were being formulated against him. The judge who found that van Rensburg had no case to answer, gave him documents authorising his departure from EG.  However, he sought help from the South African embassy in Malabo as he feared he would be picked up by the police again.

 

He was given diplomatic protection by the embassy staff who, from that point on, were involved in trying to help van Rensburg leave EG and who rapidly accumulated a thick and detailed dossier on all that transpired. A fortnight later they were assured by EG’s Minister of Foreign Affairs and Security that van Rensburg could return home. About to board a flight out of the country, however, van Rensburg was confronted by Angabe who had him arrested. According to van Rensburg’s affidavit, made as part of his ongoing legal battle for damages, Angabe said ‘there was no way that (van Rensburg) would leave the country alive.’

 

Two periods of detention followed in a notorious prison, referred to locally as ‘Black Beach’. His second period of detention there lasted more than a year. According to van Rensburg, conditions in this jail were horrific and left him with permanent, life-shortening physical damage caused by untreated illnesses he developed there.

 

Bribe

Ultimately, says van Rensburg, he was able to bribe his way out of EG, using money raised by his wife in SA. Once back home, van Rensburg prepared to launch an action against Teodorin claiming that, as Vice-President overseeing security and defence, he was responsible for van Rensburg’s repeated arrests and unlawful detention.

 

Teodorin is the citizen of another country, and in such a case South African law requires that some of his property has to first be attached before a local court can consider a case involving a legal claim against him.

 

The high court agreed to the attachment of a Clifton property owned by Teodorin, but the EG Vice-President appealed against that decision. Six months ago, a full Bench of the Western Cape High Court rejected that appeal. In a strongly-worded decision, the judges affirmed the attachment of Teodorin’s Clifton property and, as a consequence, that van Rensburg could litigate against Teodorin in a South African court.

 

Among the documents considered by the full Bench were reports by organisations such as the United Nations, Human Rights Watch and Amnesty International on the situation in EG including the continuing, unlawful behaviour of its ruling family and their associates. The court also considered evidence from individuals with first-hand experience of the situation in that country.

 

Act of state doctrine

One of Teodorin’s arguments to the full Bench was that the act of state doctrine barred any action against him in SA. This is an increasingly questioned legal approach under which courts of one country hold that they cannot pass judgment on the acts of the government of another country. Van Rensburg’s answer was that the act of state doctrine does not apply, because Teodorin was not acting in an official capacity when he ordered his detention.  (An argument along similar lines found favour with Britain’s House of Lords, when it held that former Chilean dictator Augusto Pinochet could be subject to trial abroad for alleged crimes within Chile, because Pinochet was not acting in his ‘official’ capacity when he ordered the torture of his political opponents.)

 

If the Constitutional Court agrees to hear Teodorin’s appeal, several important issues will be debated, the act of state doctrine being one of them. Should what transpired in EG be regarded as immune from consideration by South African courts? This is a crucial area of law undergoing profound changes in response to international conventions on war crimes, genocide and torture among others.