‘Amigos prejudiced by charge’ — defence

2013-03-06 00:00

THE Prevention of Organised Crime Act (POCA) meets a vital public need by creating a law that can properly deal with the “cancer” of organised crime in this country.

And its terms have to be “wide” because organised crime can manifest itself in many different ways and forms, and the proceeds can be “salted away” through many different methods.

That is what the senior counsel for the prosecution, David Unterhalter, SC, said in reply to a high court application on behalf of the so-called “amigos” corruption trial accused Gaston Savoi, his company Intaka Holdings and co-accused Fernando Praderi, who claim sections of POCA are unconstitutional and should be struck down.

Of particular concern to the accused are the racketeering laws, which Savoi said in an affidavit were open to “personal and political manipulation”.

He referred to the withdrawal of charges against his former co-accused, MEC Mike Mabuyakhulu and KZN legislature speaker Peggy Nkonyeni, saying the KZN director of public prosecutions, Moipone Noko, had declined to elaborate on her decision to withdraw the charges.

All Noko said was that there was inadequate evidence against them.

Yet Savoi maintained that the evidence against the accused was still the same.

This issue was, however, not dealt with during the legal arguments presented before high court Judge Isaac Madondo yesterday by Gilbert Marcus, SC, and Kemp J Kemp, SC, representing the Savoi camp.

In his argument, Kemp said they want to highlight the fact that anyone charged with racketeering in terms of the act is prejudiced.

The prejudice runs from the “beginning to the end” of a case from the time an accused person applies for bail, because they face a “completely different scenario” from an accused who is not charged with racketeering.

He cited as an example of possible prejudice the fact that three attorneys (who “fortunately” were among those against whom the state withdrew charges in the amigos case) could have found themselves drawn into a trial which was likely to “last years”, even though their alleged links to the offences were minor.

This was because the racketeering provisions were so wide, said Kemp.

Marcus said because the accused are charged under POCA, they face extremely severe consequences that can include life imprisonment or a fine of R1 billion if they are convicted.

He disputed the state’s contention that the constitutional challenge was “premature” or “abstract”, saying there was no better time since their complaint was “about pretrial prosecutorial abuse”.

He said if the court finds that the concepts of “enterprise” and “pattern of racketeering activity” (with which the accused are charged) are “vague, over broad and unconstitutional”, as the defence maintains they are, they should be struck down.

Currently, 11 accused (including Savoi) remain on trial in the “amigos” case. The numbers having dwindled from the initial 23, and the state has prepared a new indictment.

The accused face charges of racketeering, corruption and fraud relating to the supply of water purification and oxygen plants to the KZN health and local government departments.

The state claims Savoi and Intaka won the tenders by corrupt means.

Judge Madondo has reserved judgment on the application.

Legal sources say whatever the outcome of the application, the issue is likely to end up before the Constitutional Court.

• ingrido@witness.co.za

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