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Mapeto executives want case to go constitutional

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Mapeto David Whitehead and Sons executives who are answering tax-related offences want the case to go to the Constitutional Court for review.

The application, which The Daily Times has seen, says the executives want the Constitutional Court to interpret Section 21 of the Constitution, which provides for the right to privacy in relation to confiscation of their computers and other documents.

An affidavit in support of the application by Wame Pearson says admissibility of the prosecution’s evidence extracted in the computers as contained in the disclosures raise a number of constitutional questions which have to be addressed.

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The affidavit says the Constitutional Court should determine whether the evidence extracted and/or recovered from the computers in pursuant to Section 88(3) of the Taxation Act, Section 56 of the Value Added Tax Act and the Customs Excise Act was in in strict compliance with Section 21 of the Constitution and whether the whole process of extracting and/or recovering the evidence from computers was in compliance with the applicants’ right to privacy.

The affidavit then says if the answer to the two questions is in the negative, the Constitutional Court should determine whether the evidence is constitutional and admissible before the court.

“Unless certified by the Chief Justice as not raising constitutional issues, the whole evidence extracted and/ or recovered from the computers being relied upon by the prosecution against the applicants appears to raise constitutional questions fit to be referred for the certification of the Chief Justice,” the affidavit reads.

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Skeleton arguments in support of the application further say, according to the Republican Constitution, the accused person has the right to fair trial which includes right to presumption of innocence and that every person has the right to own property and not to be arbitrarily deprived of their property.

The applicants lawyer John Gift Makhwawa was reportedly in a meeting but Director of Public Prosecutions Steven Kayuni confirmed being served with the application.

“The State was served with the application and we are urgently looking into it,” he said.

The Daily Times, however, understands that the court could not hear the application as another application by the applicants staying proceedings in the Chief Resident Magistrate Court was still in force.

Mwakhwawa obtained the order stopping proceedings after Blantyre Chief Resident Magistrate Jean Kayira refused to adjourn the matter as he requested.

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