Equatorial Guinea is preparing an extradition request for 69 alleged mercenaries to be sent to that country for trial, the Constitutional Court was told yesterday.

The court returned from its winter recess to hear arguments why it should order the South African government to intervene on behalf of the group facing various charges in both Zimbabwe and Equatorial Guinea. They are currently in prison in Zimbabwe.

Advocate Francois Joubert told Chief Justice Arthur Chaskalson and the nine other judges that his colleagues had seen documents related to the bid in Harare with the Attorney General's staff.

"Our clients dread the prospect of ending up in Equatorial Guinea," Joubert said.

The group was scheduled to go on trial at the Chikurubi prison tomorrow charged with illegally entering Zimbabwe and seeking to obtain weapons, allegedly to overthrow the government of President Teodoro Obiang Nguema. The charges -- including some under Zimbabwe's security laws -- carry a maximum penalty of life imprisonment in Zimbabwe.

The men were arrested on March 7 after landing at Harare International Airport.

Equatorial Guinea wants to try the men -- and about a dozen others arrested in its capital Malabo -- for conspiring to overthrow and kill Nguema.

Joubert told the court it was doubtful his clients would get a fair trial in the west African state. In the past those accused there on similar charges have been executed after a summary trial.

But the court was not convinced it could help the men and repeatedly wanted to know from Joubert what assistance they could render and under what authority.

He replied that the court had that authority under the Bill of Rights contained in South Africa's 1996 Constitution.

Joubert argued that South Africa could itself apply for the extradition of the men to stand trial here under the Regulation of Foreign Military Assistance Act.

It could also seek assurances from Harare that the men would not be extradited to Equatorial Guinea or face the death penalty if extradited there.

But the judges asked several times whether the court could direct the government on the conduct of its foreign affairs, saying it would amount to a violation of the separation of power between the courts and the executive.

"Your clients walked into a lion's den. Now they are complaining there was a lion in it," Judge Albie Sachs told Joubert.

Judge Zak Yacoob questioned the urgency of the matter, saying much still had to happen procedurally before the 69 could be extradited.

"My own sense is there is still a long way to go," he said.

But Joubert said extradition was not the only mechanism Harare could use to send the men to Malabo. It could also deport them there without due process.

"They can be deported to Equatorial Guinea anytime. Deportation is not destination bound."

The court also questioned whether it was the right time to intercede on the death penalty.

Judges remarked that the men might be acquitted on the charges or Equatorial Guinea prosecutors might not seek the death penalty.

They asked whether the death penalty issue should not be raised only after such a sentence was imposed.

Joubert said there might not be enough time to do that.

Judge Sandile Ngcobo wanted to know whether Joubert implied there would be too little time between the imposition of the sentence and its execution for representations to be made.

"There may well be," Joubert answered.

"Could they be executed the same day?" the judge asked.

"Yes," Joubert answered.

Chief Justice Arthur Chaskalson was not convinced Joubert's team had done everything it could to secure the assurances it wanted before coming to court.

He implied the lawyers had given the government too little time to respond to their demands. "There's no indication of engagement."

Advocate Ismael Semenya represents President Thabo Mbeki and the ministers of justice, safety and security, intelligence, home affairs, foreign affairs as well as the National Director of Public Prosecutions.

The hearing continues. – Sapa.