Gloves off in Lamoer trial as State accused of dodgy methods

2017-10-11 21:05
Former Western Cape police commissioner Arno Lamoer (left) and his lawyer arrive at court for his corruption case. (Jenna Etheridge, News24)

Former Western Cape police commissioner Arno Lamoer (left) and his lawyer arrive at court for his corruption case. (Jenna Etheridge, News24)

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Cape Town - The State's team probing and prosecuting former Western Cape police commissioner Arno Lamoer and four others on corruption charges was accused of using dodgy processes to bring them to court, the defence claimed in a fiery session at the Western Cape High Court on Wednesday.

The State, represented by famous prosecutor Billy Downer, was accused of using a document issued in 2013 for a drug-dealing investigation to get cellphone records and monitor the five for the current case.

The defence also raised suspicions over the alleged disappearance of the supporting affidavits for subpoenas used in the investigation.

Wednesday's argument was part of a pre-trial conference.

The accused are Lamoer, tow truck company owner Salim Dawjee, and brigadiers Darius van der Ross, Sharon Govender and her husband Colin Govender. They face 109 charges of corruption, racketeering and money laundering involving R1.6m.

Dawjee allegedly paid them for favours, and all have pleaded not guilty.

Proceedings became so heated when Dawjee's counsel, Advocate William King SC, argued that his client was entitled to all the information the State has for its case, and threatened to subpoena provincial intelligence head Major General Mzwandile Tiyo to prove that he was not supposed to have access to the information gathered by intelligence services.

"We are going to subpoena Major General Tiyo to bring to this court his qualifications, in terms of what he was allowed to read and not read in his job - in short, his top secret clearance," said King.

Access to State's investigation diary

He said it had been reported that Tiyo does not have the required security clearance, nor  matric, so he had no right be part of the investigation against the five.

News24 reported in May during a Cape Town Labour Court application by Major General Peter Jacobs and Major General Jeremy Vearey, who were challenging their "demotions" that it was submitted that Tiyo did not have security clearance, nor a matric and was allegedly not fit to carry a firearm. Jacobs had been transferred to the Wynberg cluster to make way for Tiyo.

ALSO READ: Police won't say if Western Cape Crime Intelligence head has security clearance for job

The defence also questioned why it was not allowed to have unredacted cellphone records and parts of the State's investigation diary. It believes the State is not showing all its cards so the accused cannot prepare a proper defence in terms of their constitutional right to a fair trial.

Johann Nortjé, for the Govenders, said the defence had been accused of going behind the State's back and getting subpoenas for MTN and Vodacom in July 2017 to supply certain cellphone records.

He said on August 10, the State said the entire file of its information against the accused was presented to their lawyers as well as all the relevant section 205 applications.

Section 205 of the Criminal Procedures Act makes it possible to apply to a magistrate for an order to obtain certain information that the State requires for its investigation.

Red flag

Nortjé said the defence team all noticed that the founding affidavits motivating the section 205 applications were not able to be found either at the magistrate's office or at the police's crime intelligence office.

All defence counsel contacted the chief magistrate at the Bellville Magistrate's Court, which issued the section 205 notices, about this.

Nortjé said what raised the red flag for the defence was that the subpoena that was issued was titled "illegal dealing and distribution of drugs".

"The accused here face fraud and corruption charges, absolutely nothing to do with the distribution of drugs," said Nortjé.

The defence counsel then approached the Bellville court again to ask it to uplift the affidavits that support the section 205 subpoenas.

"The magistrate was shocked to find that the original affidavits were removed from her archives," he continued.

They were eventually found, but the defence wonders whether they are the originals or whether the State is trying to play "catch up" with its documentary processes.

But Downer countered the defence's claims that the State was withholding information, and said it had done everything the defence had asked for.

All that was left out was information relating to other cases and information the State considered privileged. Some of the information provided by crime intelligence to them had to be redacted for that reason.

State promises to cooperate

He also questioned why the defence approached a Vodacom employee directly for phone records relating to the case, then allegedly sent her a threatening letter when she refused without the proper court papers to release them.

The defence has been accused of going behind the court's back to get subpoenas for the cellphone providers from the court registrar. They were issued, but have since been cancelled.

Judge Rosheni Allie expressed concern that subpoenas are possibly just being "rubber stamped" without proper motivation.

After a lunch break, Downer repeated that the State would cooperate in any way required by the defence, as long as it does not impact on other cases. He still insisted that some parts might have to be redacted.

READ: Corruption-accused cops' case sidetracked by arguments over cellphone records

He said the State was confused over the latest developments, because working relations had been very cordial, and the defence needed only ask for what they thought was outstanding.

"We will be happy to get anything that comes from Vodacom and MTN and any other services providers they want to subpoena."

Downer asked for an order that the cellphone providers' subpoenas obtained by the defence remain cancelled, and that Allie order a mechanism on how information should be given to the registrar of the court.

He also wanted the defence and the State to meet to identify documentation provided, not necessarily with sight of the deep detail of the documents.

Eventually, the judge ordered the fresh subpoenas be applied for to get cell phone records from Vodacom and MTN and that the State sit with a registrar to flag what will have to be redacted and that defence get the records afterwards.

The case was adjourned to Thursday.

Read more on:    saps  |  cape town

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