Court picks flaws in DCEC’s teeth
Spira Tlhankane | Monday February 9, 2026 09:57
In two different judgments, the courts took a swipe at the DCEC and, by implication, the State’s prosecuting machinery, being the Directorate of Public Prosecutions (DPP).
“In summary, the Applicants’ complaint is that while they acknowledge and respect the Directorate on Corruption and Economic Crime (DCEC)’s investigative mandate under its Act what they cannot accept is the manner in which such a mandate has been exercised in their case i.e. unlawfully and arbitrarily (without warrants) leading to devastating economic and constitutional consequences,” Judge Barnabas Nyamadzabo outlined in the now being appealed ruling that declared Mzwinila’s passport flagging unlawful, interdicted warrantless searches and ordered the return of seized property.
“They have endured warrantless raids; seizure of business-critical equipment; detention and intimidation of staff; interference with lawful payments via an unlawful PICA directive; passport flagging without statutory authority and a pattern of conduct designed not to investigate but to economically suffocate the Applicants,” Nyamadzabo further stated in the judgment.
“The Applicants call this investigation an oppression apart from it being unlawful.” The Judge introduced this as the Applicant’s position, but allowed it to stand unchallenged in an unopposed matter and later granted relief on that basis. The judge also highlighted some expectations breached by the State authorities. “Essentially, in instant case, given that the Respondents’ process (i.e. their answering papers) was not filed or served within the prescribed time period it becomes “invalid and of no force of effect,” see Order 31 (2), unless the Respondents had applied in terms of Order 31 (4) for leave to file their process outside the said time frames. I have already indicated that this has not been done by the Respondents in the instant case. Given that the December 9, 2025 Order was the result of a draft Consent Order by the parties themselves, there was a clear expectation that the Respondents would strictly comply with an Order that they themselves had taken part in generating,” Nyamadzabo further said. On the above, the court highlighted institutional failure and disregard of court orders.
In terms of concessions implying improper searches and seizures, Nyamadzabo ruled that what is evident from paragraph 5 of the parties' scheduling order of December 9, 2025, is that the Respondents readily agreed to be “interdicted from carrying out further warrantless searches and seizures on the Mzwinilas and their property pending finalisation of this matter.”
“It is not only the above voluntary yielding or concession made by the Respondents. Paragraph 2 of the parties’ Draft Consent Order of December 11, 2025, states the following, i.e., that the “Respondents shall lift the flagging of the 1st and 2nd Applicant's minor child’s passport and cease monitoring of their movement. Paragraph 3 of the same order is also to the effect that the “Respondents shall issue a Savingram confirming paragraph (2) to all of its stations upon receipt of the typed order.” The said concessions in my view are quite significant and may be an acknowledgment on the part of the Respondents, at least partly, that their searches and seizures were improper. No cogent reason for passport flagging “there appear to be no cogent reason why such flaggings exists,” Nyamadzabo highlighted.
Additionally, Nyamadzabo reinforced that searches must be lawful and warrant-based, “law enforcement agencies should be authorised by the court through issuance of warrants to take possession of properties of individuals in the course of criminal investigations unless where the law provides otherwise under limited circumstances and even there, there is judicial oversight,” he stated. He underscored the unlawfulness of what the DCEC did in the case. “Once the law enforcement agencies have executed a particular search warrant, they cannot go back and make additional searches without a new search warrant,” he said.
Nyamadzabo also slammed the DCEC for acting outside the law. “While the DCEC is free to investigate, it is not, however, free to act outside the law.” In Justice Oteng Motlhala’s judgment, there were no striking condemnations, but they are clear judicial slaps on the wrist, especially around overreach, poor disclosure, and lack of evidential grounding.
The Judge found out that many properties were restrained without justification. “The applicant has not indicated why there are suspicions surrounding the following properties; Lot No 5264 — KO at Tshwenetshwene measuring 10.0672 hectares; Lot 8907-KO at Mosetsanamontle measuring 2.2825 hectares; Farm measuring 10.2593 at Mosetsanamontle; Industrial (Catering Equipment Workshop) at Gamodubu; Commercial shopping complex and filing station at Mmadinare; Residential plot at Lecheng; Lot No.55433 at Phakalane together with its developments; Lot No. 55670 at Phakalane together with its developments; - The numerous shares held at various companies,” he said as he listed multiple properties and shares, which were released as a direct result of this failure.
Later, the judge reinforces this failure: “Even on the low standard of proof to be employed, I could not find any reason why the property I referred to above should be restrained.” This was a direct finding that the DPP/DCEC acted without sufficient basis, even under the very low PICA threshold. The judge in the ruling rejected the idea that everything could simply be restrained because investigations exist.