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ACC MATTER STILL GROUNDED 8 YEARS LATER

07/02/2024 15:43:00 Mbongiseni Ndzimandze

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MBABANE – Eight years later, since the matter came to court, it seems there is no light at the end of the tunnel.

This is because the matter between former Minister Gideon Dlamini and the Anti-Corruption Commission (ACC), where a judgment by the Chief Justice (CJ) Bheki Maphalala rendered the commission ‘toothless’, has been postponed again. The matter was due to be heard by a full bench of the High Court, which comprised of Judge Mumcy Dlamini, who was sitting together with Judge Nkosinathi Maseko and Judge Justice Mavuso yesterday. The bench was put in place four years after the Supreme Court ordered that it should hear and determine the matter. The matter first came to court in 2016. It was after the matter had been called yesterday that Dlamini’s Attorney, Nathi Gumedze, stood up to request for a postponement of the matter, since he only got instructions yesterday, following the withdrawal of the former minister’s attorney of record.

Withdrawn

The former legislator was previously represented by lawyers from MTM Ndlovu Attorneys, who have since withdrawn as his attorneys of record. Gumedze implored the court to extend the timelines to enable him to file heads of argument on behalf of the former minister. He brought it to the attention of the court that his client was served on February 1, 2024, and it happened that the attorneys who were representing him had withdrawn. The court was also informed that the Lawyer, Mzwandile Ntshangase, who previously represented the other two respondents (Fred Ngeri and his wife Sindile), also withdrew their services. The court was informed that Ngeri was now represented by lawyers from Mdladla Attorneys, who are said to have promised to assist.

Difficulties

The ACC, which was represented by Advocate Gareth Leppan, also entreated the court to postpone the matter, as they were encountering difficulties to serve. He told the court that they had asked for the assistance of the International Criminal Police Organisation (Interpol) to serve Ngeri, who is reportedly in Nigeria, his home country. “Your Ladyship and other members of the bench, we need to achieve service in Nigeria and we have dispatched some documents to Interpol to assist in locating the second respondent (Ngeri),” said Lappen. Leppan’s submissions prompted Judge Mumcy to enquire on when exactly they dispatched the documents to Interpol in order to assist them locate and serve the second respondent. The judge wondered if Ngeri will ever return to the country.

In response, Crown Counsel Ngcebo Lukhele, who is appearing along with Lappan, told the court that, the documents were dispatched to Interpol on February 2, 2024. He further brought it to the court’s attention that the officers from Interpol advised him to provide them with the second respondent’s address in Nigeria, which was, however, unknown to him. Judge Mumcy said it was not the duty of the appellant’s lawyer to find the address but that of INTERPOL.

Wondered

“Interpol should be serious. I understand that they deal with criminal cases involving millions, so this one is minor?” wondered the judge. She further wondered why it was difficult to locate the second respondent, as this matter was widely published. The court suspected that the hardship in locating the second respondent might be on the Nigerian part of the equation. This resulted in the court postponing the matter to March 6, 2024. Judge Mumcy informed the parties that on this day, the matter would be set down for hearing. The parties were advised to have, by this date, filed their papers. The court said it would not postpone the matter any further. The former minister, who was accompanied by his wife, was present in court to observe the proceedings. In this matter, the CJ, Maphalala, opined that certain sections of the Prevention of Corruption Act, 2006 were unconstitutional. This was when the CJ dismissed the application that had been filed by the ACC to have the former minister of Commerce Industry and Trade arrested, together with Nigerian businessman Ngeri and his wife Sindile, for alleged corruption-related offences.

Judgment

The CJ made obiter dicta statements, which were not binding but persuasive, when he delivered the judgment to the effect that certain sections, including Section 12, were unconstitutional. This was in 2015. The ACC appealed the judgment and the Supreme Court referred it back to the High Court, where it is supposed to be heard by a full bench. In a previous interview, Human Rights Lawyer Sipho Gumedze said empanelling a full bench for this matter was a positive step, because the ACC was paralysed. He said it was unclear as to how the commission was to continue carrying out its functions in light of the judgment issued by the CJ. “If in the country we say we have an Anti-Corruption Commission, it must be clear how it has to function,” said Gumedze.

He highlighted that the complaint had been that the ACC could not function, because the CJ’s judgment was stripping it of its powers. Another factor that affected the ACC from carrying out its duties was the fact that a commissioner or an acting commissioner had to be appointed. The five-year contract of the Commissioner of the ACC, Daniel Dlamini, came to an end on October 16, 2023. As per Section 11 of the Prevention of Corruption Act of 2006, it is the commissioner who may authorise in writing any officer of the commission to conduct an inquiry or investigation into alleged or suspected offences under this Act. The lapse of the contract came at a time when the ACC was being called upon to investigate bribery allegations, involving, among others, the recent Senate elections.

Maphevu Mkhatshwa has been reappointed as the Deputy Commissioner in the Operations Department of the commission. Lillian Zwane is still the commission’s Deputy Commissioner.
According to Section 10 of the Prevention of Corruption Act of 2006; among other things the ACC receives and investigates complaints of alleged or suspected corrupt practices made against any person and further refers appropriate cases to the director of public prosecutions (DPP).

Corruption

During the recent Sibaya People’s Parliament, corruption was one of the most discussed issues, and the ACC was referred to a ‘toothless’ institution. The issue of corruption was linked to a number of subjects discussed in the days where the submissions and questions were posed to panellists. The key issue, which was raised by the members of the People’s Parliament, was why those who abused public resources were not taken to task. During the first three days of submissions and panellists presentations, over 25 speakers talked about corruption and its effects, and about 12 questions from the floor sought answers from the panellists, some of who submitted on practical means to deal with the scourge of corruption.