The criminal trial of self-proclaimed forex trader-turned activist-turned politician, Michael Amushelelo, and his business partner, Gergory Cloete, was postponed to 7 August this year for a trial judge to be assigned to them.
This was indicated yesterday by Deputy Judge President Hannelie Prinsloo during a scheduled pre-trial hearing. The trial has been delayed for over two years because of a constitutional challenge Amushelelo lodged against section 179(1) (b) of the Criminal Procedure Act.
Three judges of the High Court dismissed the challenge in August, with the result that the duo appeal to the Supreme Court.
Amushelelo wanted the High Court to declare the section that gives police officers the authority to issue notices to institutions to get personal information on suspects in a criminal case unconstitutional.
He further wanted an order from the court reviewing and setting aside all notices issued in terms of section 179(1) (b) of the CPA in their trial and declaring that all documents obtained by way of notices issued in terms of the section are inadmissible as evidence on the basis that it was unconstitutionally obtained.
They, however, abandoned the Supreme Court appeal after they failed to submit the proceedings in the High Court in their appeal. Section 179(1)(b) of the CPA makes provision for any police officer to, by way of notices issued, instruct any person to either appear in a lower court, or for any institution to provide documentation needed in a criminal investigation.
The applicants argued that the section is vague and open to abuse by the police. They said it happened in their case. “Section 179 of the CPA does not require judicial oversight, which makes it dangerous and unconstitutional.
There is absolutely no judicial oversight, and because of the lack of judicial oversight, the same can be subjected to abuse,” Amoomo, who lodged the challenge on their behalf, argued in papers filed at court.
He further said the section does not make provision for judicial oversight, and because the section is not clearly articulated, to avoid being vague.
The section also does not “inculcate” sufficient procedures to preclude abuse. Section 64 of the Banking Institutions Act provides for the confidentiality of banking details, except in the case of a criminal trial.
However, they said, they reserve their right to challenge the Banking Act in the event the judge refused to consider their challenge to the CPA, as it is their understanding that their bank records were obtained using notices issued according to the impugned CPA, he added.
The duo is awaiting trial on 365 counts of fraud, alternatively theft by false pretences, conducting a banking business without authorisation and conducting a Ponzi scheme, tax evasion, tax fraud, failure to pay tax, money laundering and racketeering.
Their lawyer, Kadhila Amoomo, yesterday also gave notice that they will apply for their stringent bail conditions to be relaxed. The application will be heard by the judge to be assigned to them.
Their current bail conditions require them to report themselves on Mondays, Wednesdays and Fridays every week to the police before their next appearance.
The duo was also ordered to surrender all travel documents to the investigating officer, desist from applying for new travel documents and may not leave Windhoek without authorisation from the investigating officer.