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M9million corruption trial to go ahead

Court of Appeal dismisses application for permanent stay of prosecution by prominent businessman Ashraf Abubaker, lawyer Stefan Carl Buys and former deputy sheriff Tsebo Monyako, who are facing seven counts of theft, fraud and defeating the ends of justice.

Lekhetho Ntsukunyane

The trial of prominent businessman Ashraf Abubaker, lawyer Stefan Carl Buys and former deputy sheriff of the High Court Tsebo Monyako—who are facing seven counts of theft, fraud and defeating the ends of justice—will continue after the Court of Appeal on Friday dismissed their application for permanent stay of prosecution.

The three men are facing the charges in the High Court where their application for a permanent stay on the grounds their right to a fair trial had been infringed, had been dismissed, which they subsequently challenged in the Court of Appeal.

According to evidence before the court, the charges followed a joint raid conducted by the Lesotho Revenue Authority (LRA), Directorate of Corruption and Economic Offences (DCEO) and Lesotho Mounted Police Service (LMPS) on Mr Abubaker’s premises on 10 and 11 March 2005,  during which garments worth M9 million were found concealed in an underground storage facility.

The merchandise is alleged to have been manufactured by Tony Textiles and TW Garments Manufacturing (Lesotho) (Pty) Ltd, from material imported into the country duty-free.

“The material was imported under Rebate Item 470.03 published under the Customs and Exercise Act of 1982.

“In terms of the said Rebate Item, raw material imported into Lesotho for manufacture and export to countries outside the Southern African Customs Union (SACU) is not subject to import duty, nor are the manufactured textiles liable for export duty when so exported.

“If, however, they are utilised or sold within SACU, duty becomes payable. Both companies were licenced to import material in terms of Item 470.03, but were under liquidation at the time of the search. The Second Appellant (Buys) was an appointed liquidator of both companies,” read documents before the court.

According to the documents, some of the charges were founded on Mr Abubaker’s alleged “refusal or failure to comply with lawful requests made by those conducting the search and false statements to them”.

The other counts, the documents further indicate, are from alleged false declaration concerning the garments made by Attorney Buys.

“Counts four to six relate to the alleged removal, diversion of and dealing with the garments in question, while the seventh count is theft of the garments,” note the court papers.

However, in his Court of Appeal application, Mr Abubakar noted he had been entitled to all the relevant documents before the trial began on 11 July 2011, which he said had not happened.

After the case started on 11 July 2011, it was postponed on 16 April 2012 until 18 February 2013, and by then, eight crown witnesses out of an anticipated 44, had testified.

“On 31 August 2012, that is to say more than a year after the appellants had inspected the documents made available to them by the LRA, and five-and-a-half months prior to the date on which the trial was due to resume, the Director of Public Prosecutions (DPP) wrote to the appellants’ attorneys enclosing a copy of a 32-paged forensic report with annexures comprising some 5990 pages contained in 17 lever-arch files on which a forensic auditor would rely when testifying for the crown,” note the court papers.

But the court heard how Mr Abubaker, on 29 January 2013, responded by filing a notice of motion in the High Court to be heard on 18 February 2013 – the date on which the trial was due to resume – in which he sought an order for permanent stay of the prosecution, “and in the alternative, an order that the crown be precluded from making use of any documents discovered subsequent to the previous hearing”.

Attorney Buys and Mr Monyako, on the other hand, sought a permanent stay, on the same day and through the same lawyer, on the grounds that their right to a fair trial had been infringed by the “recruitment and appointment of the prosecutor by the Lesotho Revenue Authority being investigators in their own case”.

Both applications were dismissed by Justice Tšeliso Monaphathi on 11 September 2013, leading to the trio approaching the Court of Appeal whose ruling was issued on Friday, marking the end of the road for the trio’s attempt to avoid trial.

In his judgment, Court of Appeal Acting President, Justice Douglass G Scott, noted: “The issue of the late production of the auditor’s report has, no doubt, resulted in a lengthy delay in the proceedings, which were due to recommence on 18 February 2013. But the delay has been largely the appellants’ own doing (their 29 January 2013 application). Counsel’s contention that the late production of the auditor’s report will result in the trial having to start over again is, in my view, without substance. The appeal for the first appellant (Mr Abubakar) is accordingly, dismissed.

“It follows that in my view, the second and third appellants (Attorney Buys and Mr Monyako respectively) have similarly failed to discharge the burden of establishing their entitlement to the order they seek and their appeal, like that of the first appellant, must fail.”

Justice Scott further noted in his summary: “An application for a permanent stay brought in the course of uncompleted criminal proceedings will be granted only in rare cases where there has been gross irregularity resulting in grave injustice or where justice might otherwise not, by other means, be obtained; prejudice caused by late discovery of documents more properly determined at conclusion of the trial; alleged bias on the part of the prosecutor; what must be established.”

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