Smuggling acquittal overturned

2013-06-13 22:28

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Pretoria - The acquittal of businessman and pilot Hendrik "Highway Hennie" Delport and seven alleged cigarette smugglers was overturned by North Gauteng High Court in Pretoria on Thursday.

Delport and the others were acquitted in March last year after a five-year-long trial in the Pretoria Regional Court, because their prosecutors were purportedly not duly appointed.

The National Director of Public Prosecutions (NDPP) appointed a senior advocate from the Pretoria Bar, Piet van Wyk, and advocate Theresa Kannemeyer, who works for the SA Revenue Service (Sars), as prosecutors.

Several similar fraud trials were put on ice after the magistrate's ruling in the Delport case.

The eight all pleaded not guilty to over 7 200 charges of tax fraud involving more than R264m, racketeering and contravening Customs and Excise and Value Added Tax (VAT) legislation when their trial commenced in 2004.

More than 60 000 exhibits were handed in and witnesses from Malawi, Zimbabwe and Zambia were brought in to testify.

Cigarette smuggling

Sars alleged the eight were involved in an unlawful enterprise involving the smuggling of cigarettes to obtain tax benefits or avoid paying tax.

Magistrate Adriaan Bekker acquitted them after allowing them to change their plea at the end of the State's case, to one that the prosecutors did not have the authority to prosecute in the case.

Judges Ephraim Makgoba and Pieter van der Byl set aside the magistrate's ruling on Thursday and ordered that the case be referred back to the magistrate to proceed with the criminal trial.

They said the magistrate had taken an approach which was too narrow and legalistic in considering the relevant legislation.

They were satisfied that Van Wyk and Kannemeyer were duly authorised to conduct the prosecution.

"The power to engage so-called outside prosecutors is a power, which confers a discretion on the director of public prosecutions to designate persons having suitable qualifications and experience to perform services in specific cases," they said.

"There is no indication that the legislature intended that any shortcomings relating to the conclusion of the agreement... should give rise to the invalidity or unconstitutionality of proceedings conducted by a person who was indeed engaged as prosecutor."

They said there were no grounds for it to be said that the circumstances under which the trial took place had or could have given rise to an unfair trial.

"The respondents, having been aware of all the facts relevant to their plea, were in the circumstances of this case not entitled to have raised such a plea at any time after the commencement of the trial."

Read more on:    sars  |  ndpp

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