The law protects spooks - DIS defense

OARABILE MOSIKARE
Correspondent | Wednesday January 21, 2009 00:00

Morgan Moseki of MCM Moseki Attorneys represents Jamal Ali and Abdille Mohammed Ali.

Opposing the application, the state argued that the applicants were required in terms of Section 4 of the state proceedings to give the respondents 30 days notice of their intention to sue and to annex the same to their plea.

The state submitted that such statutory notice was not given.

Section 9 of the State Proceedings Act provides that orders that relate to grant of relief by way of interdict or specific performance shall not be authorised against the government. The remedy sought by the applicants in terms of Order 1 of their notice of motion and draft order seeks to grant the applicants a prohibitory interdict in that it seeks to refrain and order the respondents from doing certain conduct contrary to Section 9,' submitted David Moloise for the state.

Moloise said the applicants have cited the second respondent, whose name is known to this publication but may not be published by law, as a party to the said proceeding in her capacity as an 'intelligence agent' and sought remedies against her in terms of the notice of motion and draft order.

He quoted Section 24 of the Intelligence and Security Services Act of 2007 which provides that no action shall be brought against any member of staff of the directorate.

'No where in the papers is (there mention of) an action of mala fide on the part of the said officer'. Moloise further told the court that the matter was not urgent because the applicants carried on doing business and they have employees who help them to carry on doing business.

He said these employees could be used to assist the applicants to carry on doing business while the passports are seized during investigations.

He reminded the court that part four of the Intelligence and Security Service Act provides a procedure for an aggrieved party where they have a complaint against the directorate, and it stipulates that all complaints must be lodged with the Registrar of the High Court. He added that the latter would then launch the complaint with the tribunal.

Morgan Moseki, for the defendents, submitted that the second respondent did not obtain a court warrant in accordance with the Intelligence and Security Service Act. Moseki said that the applicants were arrested on December 4 and 5, 2008 and detained at separate police stations. He submitted that the second respondent was in charge of the investigations.

On December 16, 2008 he said his clients were released and their passports were handed over to them. 'The officer who arrested them had 13 days to conduct investigations.

What more was needed to prove that she acted in bad faith? For her to seize the passports proves that she acted in bad faith,' submitted Moseki.

He further submitted that the applicants have obligations to meet like payment of rent but they cannot do that. He added that they also have to carry out bank transactions.

Moseki said the applicants were not aware of any other means of travel. 'They are foreigners and it is my first time to hear that a foreigner can be issued a passport by a foreign country'.

He submitted: 'The applicants in this case have alluded that the month of January is an extended vacation of the High Court until January 31, 2009. January alone renders this matter urgent'.

He further submitted that the employees at Binghi Enterprise have no power to sign cheques and can only deposit money into the company account. Surprisingly, after Moseki rested his case, Moloise hinted to the court that he has been instructed that these investigations will be concluded 'in the next three weeks at most'. This appeared contrary to the state's answering affidavit that stated that the DIS was not bound to disclose the nature and extent of their investigations.

Moloise, it appears, had received instructions from one of the directors of the DIS, a former chief magistrate who was present in court.

Ruling is expected on January 23.