By Amukeni Chauke
The acting national director of public prosecutions, Mokotedi Mpshe, will not prosecute the four South African mercenaries who, along with Briton Simon Mann, were freed from prison this week in Equatorial Guinea.
The announcement came less than 24 hours after the spokesman for the prosecuting authority, Mthunzi Mhaga, told The Times that the NPA was still "deliberating" about whether to prosecute Nicolaas du Toit, Sergio Cardoso, Jose Sundays and George Alerson for their part in an attempted coup in Equatorial Guinea.
The NPA said that, though the men had committed a "serious offence", it would be unconstitutional to try them again .
"Section 35(1)(m) of the Constitution unequivocally states that an accused may not be tried for an offence in respect of which he has been previously either acquitted or convicted.
"Our courts have ruled that the issue of the previous conviction/acquittal is to be determined not by the technical description of the two offences, but by the facts giving rise to the two charges.
"Our courts have further ruled that, in deciding whether there has been a dual conviction, regard can be paid to a conviction of a foreign court."
The NPA said that, because a local prosecution "would be based on the same factual circumstances" as those relied on by the Equatorial Guinea court, the provisions of South Africa's Constitution would be "in favour" of the mercenaries.
