Times Of Swaziland: POCA NEEDS AMENDMENT - HEADMAN

POCA NEEDS AMENDMENT - HEADMAN
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 BY KWANELE DLAMINI  on 16/05/2019 08:44:00


MBABANE – The Prevention of Organised Crime Act (POCA) of 2018 has been put
under the spotlight.
Shiselweni II Constituency Headman Bhekithemba Bhembe, whose motor vehicle has
been seized by the State over suspicions that it was used for the transportation
of drugs, wants the operation of the POCA to be suspended as a whole.
Bhembe, whose property was seized on strength of the Act, said the court ought
to give Parliament an opportunity to amend it within a period of 12 months.
The politician has filed an application at the High Court for an order declaring
the entire POCA as inconsistent with the Constitution in so far as it gives the
director of public prosecutions (DPP) the right to move a civil application
before court, as a result, taking away the powers of the attorney general.
He said the POCA could not lawfully confer additional powers to the DPP in
addition to those outlined in the Constitution by a simple majority of the
houses of Parliament sitting separately.
“The POCA, therefore, having been passed by a simple majority of Parliament
sitting separately, cannot impliedly amend the Constitution either by reducing,
modifying, altering, redefining the contents of the right and or creating
exceptions to the right of the application,” he said.
Conflict
Bhembe also wants the court to declare section 42 and 43 of the POCA to be
unconstitutional for being in conflict with the Constitution in as far as it
authorises the denial of the right to be heard.
He said the above sections authorise that a final order be issued against the
party without service of the process and dispenses with the need to cite the
interested persons.
As a result, according to Bhembe, Sections 42 and 43 of the Act should be set
aside and the entire POCA be declared as unconstitutional in that the sections
allegedly tamper with the right of property owners to be heard before their
items are seized.
The veracity of these allegations is still to be tested in court and the
respondents (DPP and AG) are still to file responding papers.
He submitted that to obtain the orders for the seizure of the property ex parte
(without their knowledge) yet the persons are known, deprived the suspects of
the right to defend their property.
Bhembe submitted that Section 21 of the Constitution creates no exception to the
right to be heard before a final ‘adverse’ decision is issued in civil
matters.
He said he would argue when the matter is heard that the right to be heard had
been made to be absolute in civil matters in terms of Section 21 of the
Constitution and that ex parte applications which have an adverse effect on
proprietary interests of other persons are unconstitutional and are not a
recognised exception.
“The moving of applications ex parte under Section 42 of the POCA has been
wrongly made to be the rule instead of being an exception and same is in direct
conflict with the letter and spirit of Section 21 of the Constitution and is
thereby unconstitutional for seeking to create new exceptions of the
Constitution indirectly and without following the prescribed procedure,” he
told the court.
Seizure
The High Court issued an order for the seizure of Bhembe’s motor vehicle, a
Toyota Hilux registered DSD 800 AS, which was abandoned at a homestead at
Mshololo, while its driver, Fana Maseko, was pursued by members of the Umbutfo
Eswatini Defence Force. A consignment of dagga weighing 510kg of dagga with a
street value of about E500 000 was found in the vehicle.
In his application before court, Bhembe prayed for an order that the vehicle be
excluded from the preservation order that was issued by the court on April 18,
2019.
He argued that the issue of the car should be declared to have been dealt with
since the Nhlangano Magistrates Court had issued an order on April 15, 2019
dealing with the same matter to finality and the conditions under which it was
attached served the same purpose as the POCA.
The motor vehicle was released to his possession by the magistrate under strict
conditions before the State obtained the order at the High Court for its
seizure. Bhembe wants the court to declare the issue of the vehicle as having
been dealt with.
Bhembe further prayed for an order that the registrar of the High Court should
give the Speaker in Parliament a copy of either the judgment or order of the
court as soon as it is issued or delivered in this matter.
Bhembe is represented by Professor Msibi of Dlamini Kunene Associated.
The constituency headman argued that offences related to dagga are not included
in the schedule of offences in which the POCA has jurisdiction.
He said even if the DPP had a reason to believe that the motor vehicle could
have been used as an instrumentality of an offence, the legislation allegedly
does not include dagga possession and or related offences. The matter is pending
in court.