Anguished families believe ICJ case shows SA has power to get two engineers released from Equatorial Guinea

Jolene Potgieter (23) during an interview in Cape Town about her father, Frik Potgieter (54) who is being held in Equatorial Guinea. (Photo: Gallo Images / Rapport / Edrea du Toit)

By Peter Fabricius

7 Feb 2024

The families of Frederik Potgieter and Peter Huxham say the two men were arrested in revenge for SA courts seizing the property of Equatorial Guinea’s vice-president.

The families of two South African engineers detained in Equatorial Guinea a year ago believe the South African government’s genocide case against Israel at the International Court of Justice shows it has the “authority, leadership and capabilities” to get the two men released.

On 9 February, Frederik (Frik) Potgieter (54) and Peter Huxham (55), a dual SA-UK citizen, will have been in detention in Equatorial Guinea for a year on what they insist are trumped-up charges.

They believe that though they were ostensibly detained for illegal drug trafficking, the real reason was retaliation for South Africa seizing two luxury properties and a superyacht belonging to Equatorial Guinea’s vice-president, Teodoro Nguema Obiang Mangue.

“Unfortunately, two innocent men have been caught in the ‘crossfire’,” said Shaun Murphy, the spokesperson for the Potgieter family.

“Frik and Peter are both highly experienced and professional engineers who were working for the Dutch company SBM Offshore in Equatorial Guinea at the time of their arrests,” he added.

“They have both maintained an impeccable professional record in the oil and gas industry, both in Equatorial Guinea and abroad in other countries.

“The families of Frik and Peter are devastated and growing more distraught as the months pass since they last saw them.

“They are also deeply disappointed that the South African government has not sought to prioritise the illegal and arbitrary detention of two of its citizens over its current high-profile international diplomacy efforts.

“Frik and Peter are hostages being held by a foreign power. These two men are in the situation that they are in because of an international dispute between South Africa and Equatorial Guinea.

“Frik and Peter were simply in the wrong place at the wrong time. Judging by events over the past month, specifically at the International Court of Justice, it is very clear to us that the Department of International Relations and Cooperation (Dirco) has the authority, leadership and capabilities required to intervene on an international level.

“The sad reality, however, is that they have done very little to assist their own citizens, and besides being heartbreaking, this alone should be of grave concern to any South African who travels for work,” Murphy said.

Dirco’s consular desk has managed to arrange just two visits to the men in the past year, and one call to each of their partners. Another visit was arranged by the UK high commissioner, when Huxham was granted a brief call to his life partner of 30 years, Kathy McConnachie. Huxham asked Kathy to marry him on that call.

Read more in Daily Maverick: Families of SA engineers ‘wrongfully’ jailed in Equatorial Guinea urge Pretoria to get them home for Christmas

The two men were arrested at their hotel in Malabo, Equatorial Guinea, on 9 February 2023, the night before they were due to fly back to South Africa following a five-week work rotation.

Kathy McConnahie (65) shows memories during an interview about her partner, Peter Huxham (55), at her home in Langebaan on 1 February 2024 in Cape Town, South Africa. (Photo: Gallo Images / Rapport / Edrea du Toit)

Jolene Potgieter (23) during an interview about her father, Frik Potgieter, on 1 February 2024 in Cape Town, South Africa. (Photo: Gallo Images / Rapport / Edrea du Toit)

Irregularities in trial

Their families say the two are being held in a prison reserved for political prisoners in Mongomo. They each received a 12-year sentence, a main fine of $5-million and additional fines to be shared between them, “for trumped-up drug offences”, Murphy said.

“The sentence and fines are much higher than what the current Equatorial Guinea law allows. Their trial, marked by numerous irregularities, took place in June 2023.

“The sentence and fines were based on outdated penalties for the alleged crimes, indicating an unsettling departure from the country’s new Criminal Code.

“No witnesses or expert opinions were presented to the court by the prosecutor, nor was any proof presented that the alleged drugs were found on the two men, and further, the nature of the alleged drugs was not tested, or conclusively proven.”

The family is convinced that the real reason for the arrests was the seizure in Cape Town of Vice-President Obiang’s luxury villas and a superyacht called Blue Shadow which he is also believed to own. Potgieter and Huxham were arrested two days after the seizure of the yacht.

Their families believe the detentions were arbitrary under the UN’s Human Rights law and a violation of the UN Hostages Convention. They have received expert legal advice that the two men are victims of hostage-taking and that Obiang and other officials could be pursued for this offence.

They noted that Article 1 of the International Convention Against the Taking of Hostages, 1979, states: “Any person who seizes or detains and threatens to kill, to injure or to continue to detain another person … in order to compel a third party, namely, a State … to do or abstain from doing any act as an explicit or implicit condition for the release of the hostage commits the offence of taking of hostages…”

Both South Africa and Equatorial Guinea are parties to the UN Hostages Convention.

“The arbitrary detention of individuals is a direct violation of fundamental human rights, including the right to liberty and security of person, as enshrined in international law,” said a member of the families’ legal team.

“The United Nations Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights explicitly safeguard individuals from arbitrary arrest and detention.”

The legal team for the two men said that Article 36 of the Vienna Convention on Consular Relations expressly states that countries be granted access to detainees in other countries. Again, both Equatorial Guinea and South Africa are signatories to this convention.

The legal expert said that the Hostages Convention clearly linked the obligation of states not to arbitrarily detain individuals with the act of hostage-taking.

They said the arrest of Potgieter and Huxham was “unlawful and/or arbitrary since their conviction and sentence fell short of the most basic of fair trial guarantees; for example, their counsel was impeded from effectively representing them and putting forward an effective defence”.

“Also, the verdict did not take into account the clear gaps in the evidence (lack of forensic evidence; lack of chain of custody evidence), which provides some indication that the detentions were carried out for a bad faith purpose or as part of a misuse of power which was unconnected to the rationale for detention (drug offences) relied upon by the government. And the sentence issued was not in accordance with the law.”

Clayson Monyela, spokesperson for the Department of International Relations and Cooperation, said the government’s ICJ case and its efforts to secure Potgieter and Huxham were not comparable.

“They are two completely different matters and sets of circumstances… both attended to by relevant government teams equipped with relevant and applicable skills. Our Consular Services team maintains contact with the two families.”

Asked if the government was making progress in securing the release of the two men, he said that was “ongoing work”. DM

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Irregularities in trial