Independent Newspapers
Accused 1: Gaston Savoi Picture: Liz�ll Muller
Durban – The R144 million “Amigos” trial has been postponed until next year while the Constitutional Court considers a challenge to the racketeering act.
This challenge could have ramifications for all prosecutions involving the organised crime-combating legislation in South Africa.
This emerged on Monday when some of the accused briefly appeared in the Durban High Court.
However, Cape Town-based businessman Gaston Savoi and business associate Fernando Praderi were absent – they were “excused for business reasons” by arrangement with the prosecution.
The case was adjourned until February 10 next year – a provisional date to give time for the Constitutional Court ruling and possibly the outcome of a recently-launched separate application brought by Savoi for a permanent stay of prosecution.
Savoi – the man accused of fraud and corruption by paying sweeteners to win contracts for the supply of water purification and oxygen plants to the KwaZulu-Natal departments of local government and health – wants the court to declare sections of the legislation unconstitutional because they violate the rule of law and fair trial rights.
Savoi made a similar application in the Pietermaritzburg High Court, which was met with partial success.
While Judge Isaac Madondo said that, on the whole, the act was “valid under the constitution and rule of law”, he ruled that a requirement that a person “ought to reasonably have known” their conduct constituted an offence of racketeering, was unconstitutional.
This was because it was confusing and vague.
Savoi now wants the Constitutional Court to confirm this but he also wants the court to look at the entire act again and measure it against trial fairness.
In papers filed with the court, his attorney, George van Niekerk, argued that Madondo erred in finding that the definition of a pattern of racketeering activity was not vague, and that he had misdirected himself when he found that the common law of conspiracy and common purpose was inadequate to deal with the sophisticated methods of organised crime syndicates.
Van Niekerk said Madondo had been wrong when he found that drastic remedies and enhanced sanctions in the legislation were justifiable.
“The issues raised are of considerable importance and affect not only the applicants, but many others who have been accused of racketeering under the now-impugned provisions,” he said.
“The final determination is urgent,” he said, pointing out that many trials, including that of his clients hinged on this.
The State is opposing Savoi’s application.
In his affidavit, senior state attorney Patrick Kevan says Madondo was wrong in his findings on the “ought reasonably to have known” provisions. “The phrase has a well understood meaning in criminal law. His finding was incorrect,” he said.
The hearing has been set down for November.
Charged along with Savoi and Praderi are former health heads of department Busisiwe Nyembezi and Ronald Green-Thompson, former health officials Victor Ntshangase and Alson Buthelezi, advocate Sandile Kuboni, former treasury head Sipho Shabalala and his wife, Beatrice.
Also accused are Savoi’s company Intaka Holdings and law firm Kuboni Inc, represented by Ian Blose.
The Mercury
* If you use Gmail to read IOL’s newsletters, note that Google is rolling out a new tabbed inbox that filters your mail into 5 separate tabs – Primary, Social, Promotions, Updates and Forums. IOL emails will probably be sent to the “Promotions” tab instead of the “Primary” tab. If you don’t want it that way, drag the newsletter from the Promotions tab to the Primary tab. An alert will pop up. Click “yes” and your newsletters will continue to go to your Primary inbox.
