CJ’S OPINION ON ACC VS GIDEON DLAMINI TESTED

MBABANE –  Has the judgment that was issued by the chief justice in the corruption matter involving former Minister of Commerce, Industry and Trade Gideon Dlamini and the ACC come back to haunt the courts?

Chief Justice Bheki Maphalala opined that certain sections of the Anti- Corruption Act were unconstitutional when he dismissed the application that was filed by the Anti-Corruption Commission (ACC) to have Dlamini arrested with Nigerian businessman Fred Ngeri and his wife Sindile for corruption related offences. The CJ made statements known as obiter dicta, which were not binding, when he delivered the judgment to the effect that certain sections, including Section 12 under which former Managing Director (MD) Nathi Dlamini of the Swaziland Posts and Telecommunications Corporation has been charged, were unconstitutional.

During Nathi’s trial for allegedly contravening Section 12(3) (a) of the Prevention of Corruption Act No.3 of 2006, which resumed yesterday, he raised a point of law based on the findings of the CJ.
Nathi is represented by Ben J Simelane in the matter and he submitted that the judgment in the matter between the ACC and the former minister be held to be applicable in so far as it held that Section 12 of the Act is constitutional.
Nathi’s trial has been started afresh after being heard by Judge Esther Ota who left the country. The offence Nathi has been charged with was allegedly committed between May 25, 2009 and July 24, 2009 while he was still the MD of SPTC. He is alleged to have refused to furnish the ACC with documents which related to the formation of New Horizon Mobile Limited, which was a subsidiary of SPTC.

The documents include authority from Cabinet or SCOPE, Public Enterprise Unit (PEU), SPTC Board of Directors and the Ministry of Information, Communication and Technology, authorising the incorporation of Horizon Mobile Limited, among others.
Simelane submitted yesterday that the chief justice had given all and sundry his opinion in the matter. Principal Judge Qinisile Mabuza reminded Simelane that the CJ made an opinion.

However, Simelane mentioned that judgments of the court were the court’s opinion. The principal judge asked Simelane if he did not think that he should have filed a substantive application so that she would decide whether the matter should go before a full bench or she decides it herself.

Nathi’s attorney said there would be a problem if all the people who had constitutional issues were to file separate applications yet the court had made a decision on a similar matter.

The principal judge said it would be different with Nathi’s case because he challenged certain aspects of his arrest in the High Court and in the Supreme Court without success and the chief justice said the status quo should remain.
“Your client is in a separate category. Your client is not at the arrest stage as Mr Gideon Dlamini was,” said Principal Judge Mabuza. Simelane said the court accepted that Sections 11, 12 and 13 of the Prevention of Corruption Act were unconstitutional. The principal judge said that was why he should have filed a full-blown application because as things stood, she would continue with the trial.

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