A ZIMBABWEAN businessman, who has spent over two years in a South African prison has launched another bid for freedom.
Frank Buyanga has been in custody at the Johannesburg Correctional Centre since November 10, 2022, following his arrest by the South African police at the request of Zimbabwean authorities.
He is embroiled in a protracted legal battle with his former girlfriend over the custody of the estranged couple’s minor child.
A warrant of arrest was issued against him by a Harare magistrate after he took the boy to South Africa without the mother’s consent.
At one point, the warrant was cancelled, only to be reinstated after the prosecution successfully applied for its reinstatement at the High Court early last year.
Buyanga was once granted R150 000 bail by the Randburg Magistrates Court, but he was immediately re-arrested on a charge of breaching South African immigration laws.
Keep Reading
- The Will of Time gets corporate endorsement
- The Will of Time gets corporate endorsement
- Buyanga suffers huge blow
- Buyanga suffers huge blow
In the latest application, Buyanga argued that his continued detention without judicial oversight is not only unlawful, but also in direct contravention of established legal principles.
He said he had been unlawfully denied access to legal representation, further exacerbating the infringement of his right to a fair trial.
“These grounds illustrate that there has been a flagrant violation of the applicant’s fundamental constitutional rights, systemic procedural failures and irreparable harm caused by unlawful detention, all of which necessitate immediate judicial relief,” the application read.
He said there were procedural irregularities and systemic failures in the justice system, abuse of power and oppressive actions by the respondents and blatant disregard for court’s ruling and orders, among others.
“The first respondent is the State of South Africa which is the complainant against Buyanga in his criminal trial and is responsible for all actions of the State’s respondents and its officials taken by them when executing their duties while the second respondent is The President of South Africa, who is the head of the first,” the court papers read.
According to the application, the second to 12th respondents are the Minister of Police, Minister of Justice and Constitutional Development, Minister of Home Affairs, Department of Home Affairs, the Directorate for Priority Crimes Investigations, the Director of the Priority Crimes Litigation Unit, National Prosecuting Authority, National Director of Public Prosecution, Director of Public Prosecution Gauteng, Yusuf Baba, the senior public prosecutor and the Randburg Magistrate Court.
The 13th and 14th respondents are magistrates Liesl Davis and Lindie Lombard, all from Randburg Magistrates District Court.
“The applicant’s unlawful detention, coupled with the respondents’ continued abuse of power, constitutes an ongoing and grave violation of fundamental rights that requires immediate judicial intervention. The delay in resolving this matter will result in irreparable harm to the applicant and further undermine the constitutional principles at stake,” Buyanga’s application papers read.
“Despite the court order issued on November 14, 2024, postponing the bail hearing to January 28, 2025, the respondents unlawfully brought the applicant to court on November 18, 2024.
“This irregular and oppressive action underscores the urgency of addressing the respondents’ misconduct and ensuring that constitutional rights are protected without delay.”
According to Buyanga’s lawyers, the applicant’s continued detention under such circumstances not only violates his constitutional rights, but also erodes public confidence in the justice system.
“The respondents have engaged in a sustained and systematic abuse of powers characterised by arbitrary actions, non-compliance with court orders and a blatant disregard for constitutional principles,” the lawyers said.
“The respondents’ actions on November 18, 2024, where the applicant was irregularly brought before the Randburg District Court in contravention of a valid postponement order, exemplify oppressive State conduct.
“Such actions not only violate the applicant’s rights, but also undermine the integrity of the justice system.”
They said the oppressive and unlawful actions of the respondents have created a chilling effect, undermining public trust in State institutions.
“The respondents have blatantly violated the procedural requirements set out in section 50 of the Criminal Procedure Act, which mandates that a detained individual must be brought before a court within 48 hours or as soon as is reasonably possible. Their failure to adhere to this provision renders their actions unlawful,” the application read.
“The applicant (Buyanga) submits that the relief sought is justified by the significant constitutional violations and the serious procedural flaws that marred the handling of the case from the outset.
“In the interests of justice and fairness, the applicant respectfully requests that this honourable court grants the application for direct access, declares the proceedings invalid and orders the immediate release of the applicant from unlawful detention.”