INLSA
Cape town-based Uruguayan businessman Gaston Savoi. Picture: Liz�ll Muller
Racketeering charges in major trials, including the “Amigos” corruption and fraud trial and the Cato Manor “death squad” case, hang in the balance with the launch of a constitutional challenge to SA’s US-styled tough legislation.
If opposed, the case lodged this week against the National Director of Public Prosecutions and the Minister of Justice and Constitutional Development by the main accused in the “Amigos case”, Cape town-based Uruguayan businessman Gaston Savoi, will first be heard by KwaZulu-Natal Judge Ron McLaren, but will ultimately be decided by the Constitutional Court – a process that could take a year.
In the meantime, Savoi’s attorney, George van Niekerk, says that, while the State is entitled to proceed with cases involving racketeering charges, it does so at risk because, if the challenge succeeds, major parts of the legislation will be scrapped.
Trials affected include those in KZN and the Northern Cape, in which Savoi himself is charged with money laundering, fraud and corruption for allegedly paying sweeteners to get contracts to provide water purification and oxygen plants to provincial governments and municipalities.
A racketeering conviction comes with a stiff penalty of a fine of up to a maximum of R1 billion and 30 years in jail.
“These charges are a short-cut for the State because it is such a broad offence,” says Van Niekerk.
“I am surprised that no one has litigated on this before. At the request of the State, we hung back on filing the application, but we have had (advocates) Francois van Zyl SC, Gilbert Marcus SC and Kemp J Kemp SC working on it with several junior advocates.
“If the State withdraws the racketeering charges and we drop the constitutional challenge, it will be easy for another litigant to pick up on it because we have done all the hard work.”
He said that, without the racketeering charges, the State would have a tougher job in court.
In his affidavit, Savoi says sections of the Prevention of Organised Crime Act of 1998 should be scrapped entirely.
He says that, while the actual crime of racketeering is not defined in the act, a “pattern of racketeering” is said to be the planned and repeated participation or involvement in at least two offences on a “laundry list of crimes” which constitute the acts on which the racketeering charge is based.
He says the law was based on and “strongly influenced” by the US’s Racketeering Influenced Corrupt Organisations Act (Rico), a fact which has been acknowledged by the Supreme Court of Appeal.
In fact, he says, parts of the act are a “cut and paste” of Rico, including the definition of a pattern of racketeering which has been described in US courts as being “elusive and uninformative”.
Savoi says the Prevention of Organised Crime Act’s definition is similarly “impermissibly vague, unintelligible and meaningless”, and the definition of an “enterprise” was overbroad and unworkable. “The rule of law requires that laws must be written in a clear and accessible manner, and must indicate with reasonable certainty to those who are bound by them what is required of them, so that they may regulate their conduct accordingly. If it does not, then it is constitutionally offensive,” he said.
Carl van der Merwe, the attorney for the Cato Manor policemen who are facing more than 100 charges relating to the death squad allegations, said if the application succeeded, it would have an impact on the case.
