The Pretoria High Court has been asked by the National Prosecuting Authority’s (NPA) investigating directorate (ID) to strike National Assembly Speaker Nosiviwe Mapisa-Nqakula’s application to have the state compel her to reveal the evidence against her from the roll and to prevent law-enforcement from arresting her.
Last week, the ID raided Mapisa-Nqakula’s home in Bruma, east of Johannesburg, in the wake of bribery allegations during her time as the minister of defence.
It was alleged thereafter that she had handed herself over; however, she instead filed an application to interdict her arrest amid accusations of corruption and money-laundering of more than R4-million.
In her application, Mapisa-Nqakula expressed concern about the erosion of constitutional rights, particularly regarding the “step-aside rule” affecting her position.
She argued that while combating corruption is crucial, it should be done within the bounds of due process and fair trial rights.
Abuse of criminal justice system
Mapisa-Nqakula alleges political abuse of the criminal justice system and seeks disclosure to address flaws in the case against her, aiming to halt biased media leaks that prejudice her fair trial rights.
She emphasised her commitment to proving her innocence and restoring her reputation.
Mapisa-Nqakula’s legal team requested urgency in the matter, urging the court to interdict and restrain authorities from arresting their client.
Additionally, they demand access to the police docket and related investigation materials.
However, in the answering affidavit, advocate Bheki Manyathi, representing the NPA, contends that the applicant’s urgency in filing the application is self-created.
He contends that, contrary to what the applicant claimed, there was no imminent arrest and that negotiations between the applicant’s legal counsel and the NPA were still ongoing.
Manyathi highlights that the applicant’s attempt to move the court date to an earlier date is not in compliance with practice directives and lacks justification.
He also disputes the applicant’s claims of urgency, stating that the investigation is complete and there is no imminent threat of detention, as bail would not be opposed.
Manyathi challenges the grounds of urgency cited by the applicant, including media reports and alleged denial of legal representation, and calls for the application to be struck off the court roll with costs.
He also argued against granting Mapisa-Nqakula’s request for an interdict, both interim and final, asserting that the balance of convenience does not favour granting the interim interdict, especially one that would interfere with the NPA’s exclusive jurisdiction and blur the separation of powers.
Remedies for wrongful arrest
Manyathi contends that the speaker has not shown exceptional circumstances warranting such relief, as there are no allegations of mala fides.
He emphasised that the speaker does not have a legal right not to be arrested and that even if the arrest was deemed unlawful, alternative remedies such as claiming damages exist.
According to Manyathi, the applicant’s rights, including liberty and dignity, are not threatened, which suggests that presenting herself at a police station with legal representation would mitigate any concerns.
He argues that the speaker does not have a right to access the docket at this stage and has various alternative remedies available, such as requesting further particulars or suing for damages if constitutional rights are infringed.
Overall, Manyathi asserts that the Mapisa-Nqakula’s rights cannot be elevated above the interest of justice and that there are alternative avenues for addressing any grievances.
The application is inappropriate
“The applicant does not have immunity against arrest. In any event, she can vindicate her rights in due course,” Manyathi said in the affidavit.
“An urgent application is simply inappropriate in circumstances where she can obtain substantial relief in due course.
“The applicant does not have a right to access the docket at this stage. She has not been charged.
“Even worse, it is not urgent that she gets access to the docket at this stage because the trial has not been set down. She does not need the docket to defend herself against the media.”
Continued Manyathi: “While the applicant has her constitutional rights, such rights are not unlimited. The applicant’s rights cannot be elevated above the interests of justice.
Suing for damages
“The applicant has many alternative remedies. First, the trial court may be asked to direct that she be given further particulars, including copies of the docket.
“There is no criminal trial that would ever proceed before the accused is furnished with copies of the docket.
“The other alternative remedy she has is to sue for damages if she strongly feels that her constitutional rights are infringed.”
The matter was set to be heard at the high court on Monday morning but was moved to later in the afternoon.
- This is a developing story
