Mbabane – Sixty-four foreign nationals have filed an urgent High Court application accusing the police of defying court orders by re-arresting them moments after they were released from correctional custody to leave Eswatini.
The applicants, led by Li Hai, want the High Court to declare their arrest and continued detention unlawful, order their immediate release and compel authorities to allow them to leave the country through the Ngwenya, Lomahasha or Mhlumeni border posts.
The National Commissioner of Police, the Minister of Home Affairs, the Commissioner General of His Majesty’s Correctional Services, the Chief Immigration Officer and the Attorney General have been cited as respondents.
According to court papers, the applicants were convicted by the Mbabane Magistrate’s Court on June 12 after pleading guilty to offences under Section 14(2)(c) and (f) of the Immigration Act. They state that each was fined E500 on each count, with the fines paid in full, before remaining in correctional custody pending deportation.
The applicants say the High Court later ordered the Ministry of Home Affairs to facilitate their voluntary departure from Eswatini. On July 22, Justice Z. Magagula granted a consent order directing the Minister of Home Affairs and the Chief Immigration Officer to issue liberation warrants for their unconditional release and giving them 48 hours from the time of their release to arrange their departure from the country.
Court papers state that Acting Minister for Home Affairs Owen Nxumalo issued the liberation warrants on July 24, directing that the foreign nationals be released and handed over to immigration officials and police to facilitate their departure through the Ngwenya, Lomahasha and Mhlumeni border posts.
The applicants allege that they were released from Sidvwashini Correctional Facility on July 25 and travelled in minibuses towards Mhlumeni Border Post intending to cross into Mozambique. However, they claim police officers prevented them from leaving the country, despite monitoring their journey from the correctional facility.
They further allege that immigration officials at the border had been instructed not to permit them to leave Eswatini. According to the application, they were then arrested at the border and taken to Mafutseni Police Station, where they remain in custody.
The applicants contend that their legal representative, Linda Dlamini, sought an explanation from police, who allegedly informed him that they were being detained for immigration offences.
They argue that the police are attempting to detain them for offences for which they have already been convicted, sentenced and fined. They further claim no fresh charges have been laid, no new warrants of arrest have been issued and they have not been taken before a magistrate following their re-arrest.
The applicants submit that the re-arrest breaches Section 21(7) of the Constitution, which protects individuals from being tried twice for the same offence, and also violates the common law principle of autrefois convict.
They also accuse the police of frustrating the implementation of earlier High Court orders by preventing them from exercising their right to leave the country after liberation warrants had been issued.
In their application, they ask the court to declare the re-arrest unconstitutional, order their immediate and unconditional release, direct the police to stop interfering with their departure and extend the original 48-hour period granted for them to arrange their exit to 72 hours.
The applicants are also seeking an order compelling the relevant authorities to facilitate their departure through the border post of their choice and requesting that the National Commissioner of Police be called upon to explain why he should not be held in contempt of court over the alleged failure to comply with previous court orders.
They argue that the matter is urgent because every day they remain in custody amounts to a fresh violation of their constitutional right to personal liberty and continues to frustrate the implementation of the High Court’s orders.
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