The criminal trial of forex trader-turned-politician, Michael Saddam Amushelelo and his business partner Gergory Cloete, was postponed to 16 April next year to pave the way for their appeal in the Supreme Court.
The business partners are 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.
Amushelelo and Cloete lodged a challenge against the constitutionality of 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 pair lodged appeal in the Supreme Court. Amushelelo wants the High Court to declare the section that gives police officers authority to issue notices to institutions to get personal information on suspects in a criminal case unconstitutional. He further wants 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 they were unconstitutionally obtained.
If the court declines, they want the Supreme Court to declare that the section is unconstitutional. Should the court fail to do this, they will ask for a declaration that Section 64(10(d) of the Banking Institutions Act is unconstitutional.
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 argue that the section is vague and open to abuse by the police. They said this happened in their case.
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 refuses to consider their challenge to the CPA, as it is their understanding that their bank records were obtained with notices issued according to the impugned CPA.
According to them, 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,” Khadila 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 as to avoid being vague.
The section also does not “inculcate” sufficient procedures to preclude abuse, he added.
Amushelelo and Cloete are joined in the fight by fraud-accused Manga Nawa-Mukena.