Post by Sapphire Capital on Jul 22, 2008 1:47:29 GMT 4
July 21 2008
Controversial businessman Gary van der Merwe is lodging a Cape High Court application in which he questions whether the Scorpions have the mandate to prosecute him for fraud and Foreign Exchange Control regulations.
Van der Merwe was arrested at Cape Town International Airport in 2004 while trying to leave the country with R1,5-million in foreign currency.
He claims that the foreign exchange contraventions he has been charged with do not fall within the types of crimes the unit has been mandated to investigate.
But the Scorpions have hit back, claiming in court papers filed last week that Van der Merwe's application was merely a ploy to delay his criminal trial.
In that trial, Van der Merwe's secretary, Karin Hoge, agreed to testify against Van der Merwe as well as Paul Killian and Tyrone Oates - the directors of Van der Merwe's companies World Online Limited (WOL) and Wealth International Network (WIN).
The State withdrew the charges against Hoge.
In Van der Merwe's high court application, he says the Scorpions acted outside their legislative and operational mandate, and that the subsequent criminal charges were therefore unlawful and invalid.
But in an affidavit filed on Wednesday, Western Cape Scorpions head Adrian Mopp said it was "clear" that Van der Merwe was trying to delay the start of the criminal trial.
He said the constitution guaranteed Van der Merwe a right to a fair trial.
Should Van der Merwe feel that any part of his trial was unfair, he could turn to the trial court for relief.
Mopp said the court was authorised to exclude evidence obtained in a way which violated Van der Merwe's rights and which would render the trial unfair or be detrimental to the administration of justice.
He said the court usually only granted such applications as a last resort and where the State was overwhelmingly at fault.
Mopp added that the Criminal Procedure Act entitled Van der Merwe to plead that the prosecutor had no title to prosecute him.
Also, should he be convicted, he could also lodge an appeal or review proceedings on the basis that his trial was not fair.
Mopp said the State advocate prosecuting Van der Merwe, Louis van Niekerk, was authorised to prosecute cases investigated by the Scorpions but also retained his delegation to prosecute cases within the DPP, which did not involve the Scorpions. The Prosecuting Authority Act allowed a Scorpions prosecutor to prosecute a DPP matter.
The application is to be heard in September.
Controversial businessman Gary van der Merwe is lodging a Cape High Court application in which he questions whether the Scorpions have the mandate to prosecute him for fraud and Foreign Exchange Control regulations.
Van der Merwe was arrested at Cape Town International Airport in 2004 while trying to leave the country with R1,5-million in foreign currency.
He claims that the foreign exchange contraventions he has been charged with do not fall within the types of crimes the unit has been mandated to investigate.
But the Scorpions have hit back, claiming in court papers filed last week that Van der Merwe's application was merely a ploy to delay his criminal trial.
In that trial, Van der Merwe's secretary, Karin Hoge, agreed to testify against Van der Merwe as well as Paul Killian and Tyrone Oates - the directors of Van der Merwe's companies World Online Limited (WOL) and Wealth International Network (WIN).
The State withdrew the charges against Hoge.
In Van der Merwe's high court application, he says the Scorpions acted outside their legislative and operational mandate, and that the subsequent criminal charges were therefore unlawful and invalid.
But in an affidavit filed on Wednesday, Western Cape Scorpions head Adrian Mopp said it was "clear" that Van der Merwe was trying to delay the start of the criminal trial.
He said the constitution guaranteed Van der Merwe a right to a fair trial.
Should Van der Merwe feel that any part of his trial was unfair, he could turn to the trial court for relief.
Mopp said the court was authorised to exclude evidence obtained in a way which violated Van der Merwe's rights and which would render the trial unfair or be detrimental to the administration of justice.
He said the court usually only granted such applications as a last resort and where the State was overwhelmingly at fault.
Mopp added that the Criminal Procedure Act entitled Van der Merwe to plead that the prosecutor had no title to prosecute him.
Also, should he be convicted, he could also lodge an appeal or review proceedings on the basis that his trial was not fair.
Mopp said the State advocate prosecuting Van der Merwe, Louis van Niekerk, was authorised to prosecute cases investigated by the Scorpions but also retained his delegation to prosecute cases within the DPP, which did not involve the Scorpions. The Prosecuting Authority Act allowed a Scorpions prosecutor to prosecute a DPP matter.
The application is to be heard in September.