Tuesday, September 22, 2020

Gov’t lawyers battle to protect DISS operative’s identity

Principal State Counsel David Moloise was last week battling to have the identity of a Department of Intelligence and Security Services operative protected in a trailblazing case in which two foreign nationals had dragged the DISS and the intelligence agent to court to face charges of harassment.

The two foreign nationals Jamal Ali and Abdille Mohammed Ali, both directors of Binghi Enterprises, an import car dealership, had filed an urgent application before High Court Judge Terrence Rannowane seeking the court to restrain the DISS agents from harassing them, and also asking the court to order the DISS agent, who was cited as the second respondent, to return their passports, which she had seized on December 31.

Moloise’s first order of business was to plead with the court to hold the case in camera as the identity of the DISS agent could be compromised, especially with the presence of media personnel. He also pleaded with the court that the names of the DISS agent should not be mentioned during the proceedings.

The defense also argued that the DISS agent should not have been cited as the second respondent as it is a contravention of the Intelligence and Securities Act, which states that no action shall be brought against a member of the DISS or any person acting under the directions of the Directorate unless such a person is deemed to have acted maliciously and without good faith. Moloise argued that the applicants had failed to state categorically how the second respondent had acted with malafide, without good faith and beyond reasonable doubt.

However, the complainants’ attorney, Morgan Moseki, argued that the intelligence agent is the one who had compromised her identity as she had operated brazenly and outside the confines of the law. Moseki also explained that the applicants were arrested on December 4 on allegations that there were irregularities in their work and residence permits, and later released on December 16 without charge.

The said DISS operative would return on December 31 and confiscate the applicants’ passports, saying that a loophole had been found in their documents. Moseki argued that the fact that the applicants had been arrested and released without charge and that their passports had been confiscated for close to two weeks, in the process compromising their business operations and their safety as foreign-nationals, was an ultimate show of bad faith.
“There is nothing precluding the applicants to cite the second respondent in their application. It is up to the government to declare whether the attorney general will represent the second respondent or not. What if she had acted outside the mandate set for her by her conditions of service?” asked Moseki.

Moloise charged that it was unreasonable for the applicants to state that they were being harassed because their release without charge was not in any way an indication that they were innocent or that they would not be re arrested as investigations continue.

He also called for the case to be dismissed with costs because the applicants had violated Section 10 of the State Proceedings Act which dictates that any person wishing to take action against government or an officer of government should give notice of intent 30 days before taking such action. He argued that the failure of the applicants to give such statutory notice renders the application ineffective and the finality of the proceedings null and void.

Moloise further argued that the applicants were seeking to compromise Section 9 of the State Proceedings Act which states that orders that relate to the grant of leave by way of interdict against the government shall not be authorized.

“That the applicants are asking the court to prohibit government or government agents to stop frequenting their place of business, or rather doing their duty, is a direct contravention of this act, which clearly stipulates that no interdict, permanent or temporary shall be granted against the government,” said Moloise.

The principal state counsel also argued that the applicants had failed to show explicitly what constituted to the urgency of their application. Moseki, however, stated that the confiscation of the applicants’ passport had greatly compromised their business operations as they use them as identity during transaction. He said that a passport confers rights to an individual and identifies an individual, such that it cannot be seized in the manner that it was, without even a warrant and for such an unreasonably long time.

“All these render the matter very urgent and competitive,” he said.
Moloise also made a last submission, which hinged on whether the court found the matter to be urgent or not. He argued that should the court find the matter not to be urgent, then the applicants had to follow the right procedure and file an application with the DISS tribunal which is tasked with the mandate of handling all complaints against the DISS. Moseki, however, said that the act does not state specifically if the tribunal can be able to handle matters of an urgent nature.

Justice Rannowane is expected to deliver a ruling on December 23rd.

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The Telegraph September 23

Digital edition of The Telegraph, September 23, 2020.