Lengthy legal processes prevent ‘undesirable’ Dutch arms dealer Guus Kouwenhoven from being kicked out  of South Africa

Ongoing legal processes focused on a Dutch arms trafficker who South Africa recently labelled an “undesirable person” mean he cannot simply be made to leave the country as these matters first need to wrap up.

Guus Kouwenhoven, 78, whose full name is Augustinus Petrus Maria Kouwenhoven, has based himself in South Africa since late 2016 and has lived in upmarket Cape Town suburbs including Bantry Bay.

He entered the country on a visitor’s visa.

Kouwenhoven’s wife has permanent resident status and he later apparently had his visa changed to that of a spousal one.

Last year the Southern Africa Litigation Centre (SALC) announced it was challenging the granting of his visa, in a matter that was heard in the Western Cape High Court.

“South Africa’s Immigration Act prohibits the granting of a visa to a foreign national suspected or convicted of committing international crimes including war crimes,” the centre said in a press release at the time.

“The Immigration Act stipulates that any such person is a prohibited person and cannot qualify for a visa to remain in the country. SALC submits that Kouwenhoven suppressed these material facts when applying for a visa and/or that when the Department of Home Affairs became aware of the same they failed in their duty to take steps to declare him to be a prohibited person, withdraw his visa and deport him.”

This week it emerged that SALC was successful in its quest relating to his visa.

Kouwenhoven’s attorney Gary Eisenberg said on Friday that he had received a letter on 6 November from the Home Affairs’ director-general stating that Kouwenhoven’s visa had been withdrawn on the basis he had been declared an undesirable person.

He had 10 working days – until 20 November – to effectively appeal and Eisenberg was drafting documents for this.

At the same time though, Kouwenhoven was still part of legal processes relating to an attempt by the Netherlands to have him extradited.

Eisenberg explained that this meant that these processes would first have to conclude before anything happened to Kouwenhoven.

“It stays any attempt by the state to deport him,” Eisenberg said.

He described deportation as an “immigration mechanism to spit them out by force”.

Kouwenhoven declined to speak to Daily Maverick.

Home Affairs spokesperson Siyabulela Qoza did not immediately respond to a query about the matter.

Kouwenhoven’s legal woes in South Africa link to the Netherlands and started in earnest when he was arrested in Cape Town back in 2017.

According to court papers relating to his arrest, he had regularly visited the country for a few weeks at a time since 2012.

He last entered South Africa on a visitor’s visa on 18 December 2016 and had not left the country, apparently because of ill health.

While he was in South Africa, legal proceedings against him unfolded in the Netherlands.

On 21 April 2017 the Court of Appeal of Den Bosch convicted Kouwenhoven of offences relating to “co-perpetrating the illegal supply of weapons to the regime of Charles Taylor (the erstwhile president of Liberia) during the period 2001 to 2003 which are contraventions of the Dutch Sanctions Act… and… participating in war crimes committed by Liberian forces and/or members of the Liberian militia during the period 2000 to 2002, in armed conflict between Liberia and Guinea”.

Kouwenhoven was sentenced to 19 years in jail. (This matter, according to Eisenberg, is under appeal at the European Court of Human Rights.)

A day after his conviction in the Netherlands “Interpol in The Hague despatched a Red Notice by email to Interpol Pretoria” requesting he be provisionally arrested.

The Netherlands also wanted to have Kouwenhoven extradited.

He was not immediately arrested due to administrative and other issues that first needed to be ironed out.

But Kouwenhoven had been monitored.

“In October and November 2017 [he] had been observed by SAPS intelligence officers driving himself around Cape Town on a regular basis. He appeared to be wealthy. He was well-travelled. As someone with experience in cross-border commerce, including international arms trafficking, he would probably have little trouble obtaining a false passport should he choose to do so,” court papers relating to his arrest said.

“Given South Africa’s porous borders, it was unlikely that [Kouwenhoven] would have difficulty leaving South Africa other than through a designated point of exit.”

The court papers said Dutch authorities had told a South African police officer that Kouwenhoven “was a close friend of the President of Congo-Brazzaville and that this country had been his base since 2003”.

South Africa and the Netherlands did not have an extradition treaty with Congo-Brazzaville and it was believed that if Kouwenhoven left South Africa “he would consequently have a relatively safe haven”.

Kouwenhoven was eventually arrested in Cape Town on 8 December 2017 and later released on bail. 

Legal matters linked to him continued.

In February this year it was ruled in the Cape Town Magistrate’s Court that he would not be extradited because South Africa’s Extradition Act only allowed for someone to be extradited if the offences alleged were within the state wanting the extradition approved.

In other words, the Netherlands could not have him extradited because the crimes alleged had occurred in Liberia.

Eisenberg said the state had recently decided to appeal this magistrates court decision.

This matter was set to be heard in the Western Cape High Court next month.

It was this court matter, and potential matters stemming from it, that first had to conclude before South Africa could try and proceed with deporting Kouwenhoven if it decided to do so. 

Decades ago Kouwenhoven had also faced legal action in the United States.

In her founding affidavit to try and have his South African visa revoked, Kaajal Ramjathan-Keogh, SALC’s executive director at the time, had said it appeared that Kouwenhoven had not disclosed that he was convicted of crimes in the US in 1977 “relating to an attempt to sell stolen artworks, including a Rembrandt, and sentenced to two years imprisonment”. 

“Apparently he only served a few weeks of the sentence and was deported from that country.”

US court papers from 1979 said Kouwenhoven “pleaded guilty on May 25, 1977 to conspiracy to dispose of stolen paintings in foreign commerce”. 

But his defence previously reportedly said in court proceedings in Cape Town that he was never convicted for that matter.

On Friday SALC issued a statement saying together with Lawyers for Human Rights, it welcomed the Department of Home Affairs’ decision “which reaffirms South Africa’s commitment to international justice by ensuring the country does not become a safe haven to alleged perpetrators of the most heinous crimes that the international community as a whole has a responsibility to prosecute.” However, they remained worried that the department had extended Kouwenhoven’s visitor’s visa after he was convicted of complicity in war crimes in the Netherlands in 2017. DM