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BLOW FOR ACC AS ... COURT SETS ASIDE INVESTIGATOR’S WARRANT

25/09/2024 16:11:00 Kwanele Dlamini

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MBABANE – It is a blow for the ACC.

This is because the High Court yesterday set aside the search and seizure warrant that was granted to the Anti-Corruption Commission (ACC) against ACC Assistant Investigator Bonginkhosi Dlamini. Judge Zonke Magagula also ordered that the ACC should pay costs of the application and return items that were seized after the warrant was issued. Dlamini and his wife, Nonduduzo Shongwe, were the applicants. The ruling of the court comes at least two weeks after Bonginkhosi appeared at the magistrates court. He was making his first court appearance after being arrested for allegedly demanding about E200 000 from the Head teacher of Lusoti High School, Thamsanqa Masuku, so that he would not be investigated for allegedly misappropriating school funds.

Investigation

He is also accused of demanding a cow from the Director Operations of Eswatini Railways, Sandile Stanley Dlamini, to stop ACC investigators from instituting an investigation against him. It remains to be seen what will happen to this case following the court setting aside the search and seizure warrant, where certain evidence against him was obtained. When he and his wife challenged the search and seizure warrant, they told the court that the raid at their premises was unlawful. Bonginkhosi submitted that his colleagues took a number of gadgets and documents, which belong to him and his wife. The ACC officers, according to Bonginkhosi, informed him that they were investigating him for suspected corruption.

The couple took the matter to court, where they sought an order setting aside the search warrant that was issued at the Mbabane Magistrates Court on March 14, 2024. They also applied that the court should direct the ACC to return all the seized items, including copies of all the documents that were taken by the investigators, in terms of the warrant. Respondents in the matter were the ACC, attorney general (AG) and the Director of Public Prosecutions (DPP). Bonginkhosi narrated that on March 15, 2024, four officers from the ACC approached him at home and produced a warrant, which was signed by a magistrate on March 14, 2024.

He stated that the investigators from the ACC were led by Sifiso Khumalo. “They first searched my home in Mbabane, then my office at the Anti-Corruption Commission, then my home again and they seized items and documents, purportedly on the strength of the warrant,” he submitted. He brought it to the court’s attention that he previously owned and operated two companies, Red Heart Investments and Deep Gold Investments. He pointed out that Red Heart Investments was in the business of supplying stationery and had now ventured into construction. He claimed to have resigned from Deep Gold Investments in 2023.

According to Bonginkhosi, the search warrant was issued in terms of Section 46 of the Criminal Procedure and Evidence Act 67/1938. He submitted that according to the warrant, the officers were allowed to search the government house he was occupying, office at his workplace (ACC), house at Madlangempisi, offices at Red Heart Investments (Mitsini Complex at Sidwashini), offices at Deep Gold Investments at Cooper Centre and his motor vehicle. He submitted that the warrant also provided a list of items to be seized, which included quotation books, his cellphones, quotation books of Deep Gold Investments, quotation books of Heart Investments, invoices of Deep Gold Investments, his laptop and USB.

Envelope

“Purporting to be acting in terms of the warrant of search, the Anti-Corruption Commission seized the following items from me; a Dell laptop, charger and bag, a brown envelope with documents, a letter, a deed of suretyship, FSRA Form B for Red Heart Investments, Red Heart Form J, a blue folder with documents, leave application, purchase order, delivery note, Deep Heart invoices, resignation letter from Deep Gold Investment to FSRA, a letter to Eswatini Bank resolution requesting an overdraft facility, HP Pro Book laptop with a bag which contained documents, brown envelope with documents,” submitted Binginkhosi. He alleged that some of the items that were taken by the investigators included a blue Samsung A35 valued E3 500 and brown Huawei from his car and a receipt book for Deep Gold Investments.

Bonginkhosi stated that from his wife, two cellphones, a Samsung and a Nokia, were taken by the investigators. According to Bonginkhosi, the seizure was effected, despite his protestation to the effect that his wife had nothing to do with the investigation, because it involved him and Masuku of Lusoti High School.

Highlighted

He said he further highlighted that his wife was not mentioned as a person to be searched in the warrant. Bonginkhosi contended that, despite his protestation, the ACC officers proceeded to unlawfully seize his wife’s cellphones. His arrest came eight years later after the ACC had challenges in its operations. This was after Chief Justice (CJ) Bheki Maphalala opined that certain Sections of the Prevention of Corruption Act No.3 of 2006 are unconstitutional. This was the matter between former Minister Gideon Dlamini and the ACC. The judgment by the CJ rendered the ACC ‘ineffective’. Other respondents were Nigerian businessman Fred Ngeri and his wife Sindile. Ngeri and his wife were represented by Advocate Thakane Mofokeng, who was instructed by S.V. Mdladla and Associates. A full bench of the High Court found that it (court) lacked the necessary competency to deal with the merits of the matter, because the applicant (ACC) based its appeal on a ground that was not appealable in law.

The matter was heard and determined by Judge Mumcy Dlamini, who was sitting together with Judge Zonke Magagula and Judge Justice Mavuso. 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, are unconstitutional. This was in 2015. The ACC appealed the judgment and the Supreme Court referred it back to the High Court. “It is glaringly clear that the opinion by the learned chief justice to the conclusion that Sections 11, 12, 13 and 17 of the Act are unconstitutional did not form part of the reasons for the dismissal of the application that served before him,” reads part of the judgment that was delivered yesterday.

Discussions

It was further the court’s finding that inasmuch as the CJ took much time addressing the sections of the Act, the said Sections and also the fact that in between the discussions of the investigation officers, he would occasionally revert to mention the unconstitutionality of certain provisions of the Act. According to the judges, this did not detract from the fact that such was not the reason for the dismissal of the application. “In other words, that the learned chief justice authored very long obiter dicta did not render such to be the ration decidendi.”
Ratio decidendi is a Latin phrase meaning ‘the reason’ or ‘the rationale for the decision’. The ratio decidendi is ‘the point in a case that determines the judgement’ or ‘the principle that the case establishes’. In the judgment, the full bench stated that the question on its competency rested on whether in law, the ACC was entitled to raise an appeal based on the ground that reflected in its notice of appeal.

“Put differently, the question was whether the opinion of the judge a quo (CJ), that certain provisions of the Act were unconstitutional, was the basis upon which he dismissed the application for a warrant of arrest, search and seizure by the applicant (ACC) that served before him in chambers,” reads part of the judgment by the full bench.