Intaka accused challenge organised crime law
A Constitutional Court challenge to organised crime law by Intaka fraud and corruption-accused businesspeople Gaston Savoi and Fernando Praderi has potentially far-reaching ramifications for law enforcement agencies – especially if the Constitutional Court finds the relevant sections are unconstitutional.
Savoi, Praderi and their company, Intaka Holdings, are at the centre of one of the country's biggest corruption trials, spanning several provinces, four criminal cases and over R144-million.
Savoi and Praderi are accused of bribing officials in two provinces to secure lucrative and inflated contracts to supply water and oxygen purification plants to hospitals.
In KwaZulu-Natal, government officials are alleged to have flouted tender regulations for their own enrichment – which they and the ANC allegedly received from Savoi and Intaka.
Savoi and Praderi's challenge
Now Savoi and Praderi want portions of one of the Acts under which they are charged with racketeering –? the Prevention of Organised Crime Act (Poca) –? to be declared unconstitutional by the Constitutional Court. The court will hear their arguments on Monday.
The national director of public prosecutions and the minister of justice and constitutional development are opposing Savoi and Praderi's challenge.
The case has potentially huge ramifications for law enforcement agencies, especially if the Constitutional Court finds the relevant sections are unconstitutional.
In a separate fraud and corruption trial, involving the alleged rigging of tenders in Limpopo, former ANC youth league president Julius Malema is also charged with racketeering.
Savoi, Praderi and Intaka argue that some parts of section 1 of the Act are unconstitutional because they are vague and generalised.
The applicants are challenging the constitutionality of the definition of a "pattern of racketeering activity" and "enterprise" in section 1 of Poca, and chapter two of the Act.
They argue the definition of "pattern of racketeering activity" in section 1 of Poca is unconstitutional and void for being vague, and the definition of "enterprise" is overbroad and unconstitutional.
The sections, which rely on these definitions, in section 2 of the Act are similarly unconstitutional, the applicants argue.
They also argue that their rights to a fair trial are violated because section 2 (2) of the Act allows for the admission of otherwise inadmissible evidence in court.
The respondents argue that the challenge is abstract, although Savoi and Praderi argue that it has a material impact on their criminal trial.
According to the respondents' papers: "The state alleges that Savoi, Praderi and others conspired with highly placed officials in the provincial administration with the aim of unlawfully securing contracts for the supply of water purification plants and oxygen self-generating units to the KwaZulu-Natal provincial government.
"Water purification plants are procured to provide services to the poorest people in the province and oxygen plants are vital equipment for state hospitals which serve the poorest."
They are accused of similar crimes in the Northern Cape. Both cases are postponed pending the outcome of the Constitutional Court challenge.
"Instead of going to trial", the state argued, the applicants went to the high court in Pietermaritzburg to have the relevant sections overturned.
The high court dismissed their application. But Judge Isaac Madondo ruled that some sections of the Act were unconstitutional because the provisions used the words "ought reasonably to have known" –? an argument which the applicants did not raise in their affidavits.
The state thus believes the judge was correct in dismissing the application but erred in its ruling on the constitutionality of certain provisions, because "the judge found against the respondents on a case they were never called upon to meet".