Fraud accused Gaston Savoi’s challenge to the Prevention of Organised Crime Act has been branded “abstract and premature”.
|||Durban - “Amigos” trial fraud accused Gaston Savoi’s pretrial challenge to the Prevention of Organised Crime Act (Poca) is “abstract and premature”.
This was the argument by the National Director of Public Prosecutions at the Pietermaritzburg High Court yesterday, in response to Savoi’s legal team.
Businessman Savoi is challenging the act with a view to having its provisions declared unconstitutional, which could affect all racketeering trials in the future.
Arguing for the State, David Unterhalter, SC, submitted before Judge Isaac Madondo that the challenge by Savoi was without merit and that there was no constitutional dilemma facing the accused.
Savoi, the main accused in the R144 million “Amigos” trial, says the racketeering laws were open to “personal and political manipulation” – and he cites as evidence the withdrawal of charges against his former co-accused, ANC politicians Mike Mabuyakhulu and Peggy Nkonyeni.
Savoi, with 12 others, will stand trial in May on racketeering, corruption and fraud charges relating to the supply of water purification and oxygen plants to the KwaZulu- Natal departments of local government and health.
He said in the old indictment Nkonyeni had been accused of “forming” and “managing the enterprise”, with five related offences of fraud and money laundering.
Similarly, Mabuyakhulu had been charged with “participating in the conduct of an enterprise”, with four counts of fraud and corruption, related to an alleged R1m “bribe” given to him and former Treasury head Sipho Shabalala.
Savoi said the new indictment contained the identical charges, but Mabuyakhulu “does not feature at all”.
Savoi, in his affidavit, said no one had yet explained how an indictment had changed from one with 23 accused and 54 counts to one with only 11 accused and 17 counts.
Arguing on behalf of Savoi yesterday were Gilbert Marcus, SC, and Kemp J Kemp, SC.
Marcus submitted that, having been charged under the act, Savoi’s rights were being threatened because he would be forced to face a trial based on charges which would not survive constitutional scrutiny.
Marcus submitted that, in terms of the act, the concepts of “pattern of racketeering activity” and “enterprise” are vague and unconstitutional.
He argued further that the challenge cannot be premature because there is no better time than before a trial to raise a constitutional question, since the complaint is about pre-trial abuse.
Savoi’s legal team submitted that the definition of the “pattern of racketeering” included offences which could not ever have been intended to be racketeering, and imposed severe sentences thereon.
These definitions are so broad, Marcus argued, that they include organised and non-organised crime and target persons who are not involved in organised crime.
Marcus argued that the State had failed to deal with Savoi’s challenge to the act, and said it was not sufficient for them to justify the general purpose of the act, but they were required to justify the specific provisions under attack.
Unterhalter responded in argument that the broad scope of the provisions of the act were necessary so as to capture the varieties of conduct and organisational structure with which organised crime is associated.
“The applicants have failed to link the challenges they bring to the indictment serving against them,” he said.
He said that the definition of “enterprise” had been cast widely by the legislature because of the diversity of criminal activity engaged in by organised crime, and the complex structures used to do so.
Unterhalter said that much had been made of the fact that the National Director of Public Prosecutions had exercised his power to withdraw the original indictment and prepare a new one.
“The change in indictment has nothing to do with the formulation of Poca. The change simply reflects the proper discharge by the prosecution of its function to assess evidence and to prosecute offences,” he said.
Judgment has been reserved.
Daily News