Extract from the explanatory affidavit of Mkuseli Apleni, Director General of the Department of Home Affairs, June 25 2015
IN THE HIGH COURT OF SOUTH AFRICA (NORTH GAUTENGHIGH.COURT,PRETORIA)
CASE NO: 27740/15
In the matter between:
THE SOUTHERN AFRICA LITIGATION CENTRE - Applicant
and
THE MINISTER OF JUSTICE & CONSTITUTI ONAL DEVELOPMENT - 1ST Respondent
THE DIRECTOR-GENERAL OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT – 2nd Respondents
THE MINISTER OF POLICE – 3rd Respondent
THE DIRECTOR GENERAL OF POLICE - 4TH Respondent
THE MINISTER OF INTERNATIONAL RELATIONS AND COOPERATION - 5TH Respondent
THE DIRECTOR-GENERAL OF INTERNATIONAL RELATIONS AND COOPERATION 6th Respondent
MINISTER OF HOME AFFAIRS – 7th Respondent
DIRECTOR GENERAL OF HOME AFFAIRS – 8th Respondent
SOUTH AFRICAN POLICE SERVICE – 9th Respondent
THE NATIONAL DIRECTOR PUBLIC PROSECUTIONS - 1OTH Respondent
THE HEAD OF THE DIRECTORATE FOR PRIORITY CRIMES INVESTIGATION - 11TH Respondent
THE DIRECTOR OF THE PRIORITY CRIMES LITIGATION UNIT - 12TH Respondent
EXPLANATORY AFFIDAVIT
I, the undersigned,
MKUSELI APLENI
do hereby make oath and say:
1. I am the Director General of the Department of Home Affairs. I am duly authorized to depose to this explanatory affidavit on behalf of all the Respondents.
2. The facts contained herein are within my own personal knowledge, unless otherwise stated or indicated and are to the best of my knowledge and belief true and correct.
INTRODUCTION
3. The full bench of the above Honourable Court presided over an urgent application on 15 June 2015 which was brought by the Applicant and made an order at approximately 15h30 declaring the conduct of the Respondents to the extent that they have failed to take steps to arrest President Omar Hassan Ahmed Al-Bashir (" President Bashir" ) to be inconsistent with the Constitution of the Republic and invalid, and to take all reasonable steps to prepare to arrest President Bashir without a warrant.
4. Shortly before this order was made counsel for the Respondents ("Advocate William Mokhari SC") had been informed by Government that President Bashir had departed from the Republic of South Africa (" the Republic" ). The Minister of State Security and the Minister in the Presidency had informed counsel for the Respondents that the circumstances under which President Bashir left the Republic would be fully investigated.
This message was communicated to the full Court shortly after the order was made. Counsel for the Applicant had requested the Court to direct the Respondents to file an affidavit explaining the circumstances of the departure of President Bashir from the Republic. The Court directed the Respondents to file an affidavit within 7 days explaining the departure of President Bashir dealing with how, when, the time, and the port of entry or exit which was used for the departure.
THE INTERIM COURT ORDER
5. On Sunday, 14 June 2015, Fabricius J, made an interim order prohibiting President Bashir from leaving the Republic until a final order was made, and directing the Respondents to take all necessary steps to prevent him from doing so. I was also ordered in my capacity as the Director General of the Department of Home Affairs to effect service of the order on the officials in charge of each and every port of entry or exit and to provide the Applicant with proof of such service and the names of the persons who received service of the Court order at each port of entry or exit.
6. I complied with the Court order by ensuring that the order was served on all our 72 ports of entry or exit in the Republic and received proof of confirmation of receipt from these ports of entry or exit. By the time the proceedings commenced before the full Court on 15 June 2015 at approximately 11h40, only 2 ports of entry or exit had not yet confirmed acknowledgment of receipt of the Court order.
However by the end of the proceedings on that day, the remaining ports of entry or exit, which are in any event remote ports, had also confirmed receipt of the Court order. The Court order to that effect had been fully complied with by my Department Proof of service accompanied by an affidavit was also served on the Applicant's legal representatives in Court. A copy of the affidavit together with the final proof of full service on all 72 ports of entry is annexed hereto marked "MA1".
7. At approximately 11h55 there were media reports that President Bashir was or had departed from Waterkloof Air Force Base. I made inquiries from my immigration officials who were on duty at the time at Waterkloof Air Force Base to verify the information. The immigration officials on duty informed me that the passport of President Bashir was not part of the passports that were handed to immigration for processing of the persons that were on board the flight
INFORMATION GATHERING AND VERIFICATION BY THE DEPARTMENT OF HOME AFFAIRS
8. The Department of Home Affiars' internal investigation has revealed that on 15 June 2015 at approximately 11h50, a Sudanese Aircraft with flight number SUDAN01 departed from Waterkloof Air Force Base. As I have stated above, President Bashir's passport was not part of the passports processed.
9. First, I deem it appropriate to explain the process that is normally followed in terms of the general protocols used for departures of delegations in terms of multilateral events such as this. I am informed that a visiting delegation, be it for bilateral or multilateral reasons are accorded specific courtesies. These include amongst others accommodation, transportation, VIP protection and protocol officers. The responsibility of the protocol officer from the Department of International Relations and Cooperation ("DIRCO") is to facilitate the official schedule and itinerary of the visiting dignitary. The South African Police Service ("SAPS") provides static and mobile protection to the said dignitary.
Whatever DIRCO and SAPS do in moving the visiting dignitary will be informed by the communication received by them from the visiting delegation. DIRCO is informed by a visiting delegation whenever there is a need for the delegation to move from one place to another. DIRCO then informs the SAPS of this request in order to deal with the security arrangements accorded to the visiting delegation.
10. I deem it prudent to further explain the role of the immigration officers of the Department of Home Affairs in providing immigration services at Waterkloof Air Force Base. Waterkloof Air Force Base is not a normal port of entry or exit. The Waterkloof Air Force Base is under the command and control of the Department of Defence and it is usually utilised to facilitate the arrival and departure of visiting Heads of State and Government, due to its strictly controlled air space. As a result of the aforesaid, immigration services are not permanently stationed at Waterkloof Air Force Base, but are required by the Defence Force to attend and perform immigration functions at the said base as and when the need arise.
11. The procedure that is followed in clearing the passengers who depart is as follows:
11.1 Based on the standing processes and procedures, a flight is declared either a normal flight or a VIP flight. As to what procedure is followed in declaring a flight as either normal or VIP, immigration officers do not play a role. This is the function of the Department of Defence. The immigration officers are only informed by base operations at Waterkloof Air Force Base about the arrival or departure of the normal flight or a VIP flight and once informed, the immigration officers are required to be present in order to perform their immigration duties. The immigration officials are not permanently stationed at Waterkloof Air Force Base and are only present at Waterkloof Air Force Base on request.
11.2 In the event of flights that have been declared VIP flights at Waterkloof Air Force Base, the passports of all the passengers on board the flight (except those of the crew), are normally presented to the Immigration Officer by representatives of the foreign State of the VIP flight, accompanied by a Protocol Officer from DIRCO.
11.3 As already stated above, the Protocol Officer from the DIRCO accompanies representatives of the foreign State of the VIP flight to present the passports to the Immigration Officer on duty at that time for processing. Neither the Immigration Officer nor the DIRCO protocol officers are provided with a passenger list.
11.4 It is pertinent to note that the passengers on a VIP flight do not personally appear before the Immigration Officer on duty. The Immigration Officer checks the passports for applicable endorsements, visas etc, whereafter the passports are scanned and stamped without any further delay.
11.5 Thereupon, the Immigration Officer hands the passports back to the representatives of the foreign State of the VIP flight in the presence of the Protocol Officer from the DIRCO. The VIP flight is then considered departure from an immigration point of view.
DEPARTURE INFORMATION GATHERED
12. I have been informed that the aircraft of the Sudanese President (" SUDAN01") was located at the Waterkloof Air Force Base for security reasons and refuelling. I was further informed that the same procedure stated above has been adhered to in respect of Sudanese flight SUDAN01 on 15 June 2015.
12.1 A representative of the Sudanese delegation contacted the DIRCO Protocol officer attached to the delegation indicating that there is a need for the delegation to move from the Sandton precinct venue to Waterkloof Air Force Base. The DIRCO protocol officer consequently communicated with SAPS Protection Services in this regard. SAPS Protection Services then made the requisite security arrangements to accompany the delegation to Waterkloof Air Force Base. The Venue Operating Centre was activated and the South African Air Force ensured the processing of the delegation and clearing of the aircraft at Waterkloof Air Force Base by all relevant authorities.
12.2 Two representatives of Sudan, in the company of the Protocol Officer from DIRCO handed a set of passports to the DHA immigration officers.
12.3 I should at this stage interpose and confirm that the officials of the Department of Home Affairs at the Waterkloof Air Force Base were at all relevant times hereto aware of the court order handed down by this Honourable Court on 14 June 2015.
12.4 After receipt of the passports, the Immigration Officer first of all checked to determine whether any of the passports belonged to President Bashir. The Immigration Officer concluded that the passport of President Bashir was not amongst the passports provided. Thereafter the Immigration Officer further checked the passports and noted that all the passports where endorsed for departure on 15 June 2015. I annexed hereto marked "MA2" a printout report from the Enhanced Movement Control System, which clearly indicates all the names and relevant details of all the passports scanned and stamped by the immigration officer on 15 June 2015.
12.5 The flight thereafter left South Africa.
CONCLUSION
13. It would therefore appear from the above that President Bashir departed from the Republic without his passport being presented to the Immigration Officer by the two Sudanese representatives who was accompanied by the Protocol Officer of DIRCO. The latter contention is fortified by the fact that verification on the passport details of President Bashir against the Movement Control System of the Department of Home Affairs reveals that President Bashir indeed entered the Republic of South Africa but that there is no record of him leaving the Republic.
DEPONENT
I CERTIFY that the deponent has acknowledged that he knows and understands the contents of this affidavit, which was signed and sworn to, before me, at Preotria on thi·s the 25th day of JUNE 2015, the Regulations contained in Government Notice No. R.1258 dated 21 July 1972 (as amended) and Government Notice No. R.1648 dated 19 August 1977 (as amended) having been complied with.
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