ConCourt upholds Poca
Law enforcers snatched victory from the jaws of defeat when the Constitutional Court (ConCourt) ruled on Thursday that certain provisions of the Prevention of Organised Crime Act (Poca) were not unconstitutional.
Had the court ruled otherwise, the prosecution of Julius Malema, the leader of the Economic Freedom Fighters (EFF), who is charged with racketeering, would have fallen away.
This was an appeal by corruption accused Uruguayan businessman Gaston Savoi in the “amigos” trial involving R144 million.
Savoi, along with 12 others – including senior public servants, are facing charges of racketeering, corruption, fraud and money laundering, relating to the supply of water purification and oxygen plants to the KwaZulu-Natal departments of local government and health.
Intaka Holdings, a company owned by Savoi, is alleged to have submitted inflated prices for water purification plants in collaboration with high-ranking officials.
MEC for economic development Mike Mabuyakhulu and MEC for health and now provincial speaker Peggy Nkonyeni were originally arraigned for the same trial, but charges against them and eight others were later withdrawn.
Two business associates of Savoi turned their backs on him at the end of September 2011 and, in a plea bargain with the National Prosecuting Authority (NPA), said they would testify against him and others.
The case has been dubbed the “Amigos” trial because of the chummy way in which Savoi, politicians and public servants addressed each other in email correspondence.
Savoi is on trial together with former provincial treasury boss Sipho Shabalala, who allegedly received R1m as a donation to the ANC.
Savoi and his co-accused Fernando Praderi launched a pre-trial challenge to Poca with a view to having certain provisions declared unconstitutional, which could affect all racketeering trials.
Savoi is facing similar charges in the Northern Cape, with co-accused provincial ANC chairman and finance MEC John Block.
They are charged with tender fraud estimated at around R112m, involving Intaka and the provincial department of health’s acquisition of water purifying equipment.
Savoi and Praderi sought an order declaring the definitions of “pattern of racketeering activity” and “enterprise” in Poca void for vagueness and over-breadth. They argued that the sections that relied on these definitions were similarly unconstitutional.
They also contended Chapter 2 of Poca operated retrospectively, in violation of the rule of law and the right to a fair trial in the constitution.
The high court dismissed their application, but Judge Isaac Madondo ruled some sections of Poca were unconstitutional because the provisions used the words “ought reasonably to have known”, something Savoi and Praderi had not asked for.
The two applied to the ConCourt for leave to appeal and the NPA applied for leave to cross appeal.
The prosecution of Savoi both in KwaZulu-Natal and the Northern Cape was therefore stayed, pending the judgment of the ConCourt.
In a unanimous judgment written by Judge Mbuyiseli Madlanga, the court found the definition of “pattern of racketeering activity” was quite clear and, therefore, not void for vagueness.
While laws must be written in clear and accessible terms, this does not require perfect lucidity.
Madlanga said: “Poca seeks to ensure that the criminal justice system reaches as far and wide as possible in order to deal with the scourge of organised crime in as many of its manifestations as possible.”