The Pretoria high court will pass judgment next Tuesday on National Assembly speaker Nosiviwe Mapisa-Nqakula’s urgent application to interdict law enforcement authorities from arresting her.
She also seeks an order compelling the state to disclose the evidence against her.
Judge Sulet Potterill heard arguments from Mapisa-Nqakula's counsel Reg Willis SC and Graham Kerr-Phillips and the National Prosecuting Authority’s Investigating Directorate’s (ID) counsel Makhosi Gwala SC on Monday afternoon.
Last week, the ID conducted a search and seizure operation at Mapisa-Nqakula's Bruma, Johannesburg, home. This operation is linked to the investigation into alleged corruption reportedly involving Mapisa-Nqakula's tenure as minister of defence and military veterans.
On Friday, Mapisa-Nqakula filed an application challenging the manner in which the search and seizure warrant was obtained and the operation itself.
Her office said she was also demanding, within her right, to be given full disclosure of all material information relating to the case, including the full docket to prepare her defence.
Not opposing bail
Kerr-Phillips told the court that the ID had conceded it would not oppose bail for Mapisa-Nqakula as she was not a flight risk.
Kerr-Phillips said the purpose of arrest was only to secure the attendance of the accused in court.
“It's not to humiliate the accused. It is not to punish the accused. On the facts of this case, even if there is a warrant, the circumstances when you should use another pathway to secure the attendance of accused at court is available, you should use it,” Kerr-Phillips said.
He also asked the court to take a “judicial peek” at the docket to decide whether Mapisa-Nqakula's apprehension of unlawful arrest was justified.
“We are entitled to know the case we are supposed to meet.”
Gwala said the ID accepted an accused had a right to legal representation but said at this stage, Mapisa-Nqakula was neither arrested nor detained, and she was not yet an accused.
“She is just a suspect. Once the applicant is handed over, she is told of charges against her. This is when an obligation to inform her of her rights arises. At that stage, then she becomes entitled to legal representation,” Gwala said.
Gwala said the application by Mapisa-Nqakula was not urgent.
He said on March 8, Mapisa-Nqakula was informed the ID intended to take her to court. On March 11, there was communication sent to Mapisa-Nqakula that the ID intended to secure her attendance in court on March 13. Gwala said she indicated she would be back in the country by March 16.
Copies of the docket
Gwala said Mapisa-Nqakula's attorney became involved and the first thing he did was to request copies of the docket.
He said it was unheard of that copies of dockets can be disclosed or demanded for the purpose of a suspect to defend themselves in the media.
Gwala said Mapisa-Nqakula's legal representative indicated he will be available on April 1.
On March 19, there was discussion between the NPA and Mapisa-Nqakula's legal representative where the lawyer asked for an undertaking that his client would not be arrested. That undertaking was not given, Gwala said.
He said on Friday, Mapisa-Nqakula brought her initial application, which was set to be heard on April 9.
On Saturday, Gwala said her legal team brought an urgent application because an undertaking not to arrest her was not given by the ID on Friday.
“This is an abuse of court process. You cannot allow a litigant to initiate a process and when that process has been initiated he abandons it. He takes the matter off the court roll. Having jumped the queue, he wants to jump the queue again. That should not be countenanced,” Gwala said.
He said what Mapisa-Nqakula was doing was to frustrate the ID’s performance of its statutory functions.
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