Matter back to full trial
As the K16.5 billion Mapeto David Whitehead and Sons (DWS) tax evasion case is set to resume on March 28 2022, the defence wants the matter referred to the Constitutional Court.
Chief resident magistrate (South) Jean Kayira on Friday said the full trial will start on March 28 and is expected to end on April 1 2022 where the State is expected to continue parading its witnesses.
Kayira’s directions follow the High Court of Malawi Judge Vikochi Chima’s decision on January 18 2022 to lift an injunction which Mapeto DWS executives obtained in September last year. The accused persons through their lawyers stopped Kayira from continuing hearing the case pending a review.
But in a sworn statement we have seen filed by one of the defence lawyers Pearson Wame, the accused person wants the matter to be referred to the Constitutional Court.
The defence argues that the evidence that Malawi Revenue Authority (MRA) extracted from computers it confiscated from the accused persons raises a number of constitutional questions, which they say need the Constitutional Court’s interpretation.
Among others, the defence wants the Constitutional Court to determine (i) whether evidence extracted and/or recovered from computers pursuant to Section 88(3) of the Taxation Act, Section 56 of the Value Added Tax Act and Section 15(1) of the Customs and Excise Act was in strict compliance with Section 21 of the Constitution of Republic of Malawi, and (ii) whether the whole process of extracting and/ or recovering the evidence from computers was in compliance with the applicants’ rights to privacy.
Reads the sworn statement in part: “If the determination of issues in clauses (i) and (ii) above, are in the negative, whether the evidence extracted and/or recovered from the computers is constitutional and admissible before the court a quo.
“That unless certified by the Honourable 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, therefore, appears to raise constitutional questions fit to be referred for the certification of the Chief Justice.”
Kayira has since set February 28 to hear the application by the defence on whether to refer the matter to the Chief Justice for certification.
In an interview yesterday, Wame said the defence is preparing for the case and that the court will not be served with new disclosures as they already served it.
State lawyers Beatrice Mwangwela, Anthony Chungu and Director of Public Prosecutions, Steve Kayuni were not available for comment. Kayuni was reported to be in court while Mwangwela and Chungu did not pick up their phones.
Judge Chima lifted the injunction after noting that the defence in September last year wanted a 30-day break to allow the new lawyers leading the team time to study the State’s disclosures and that the 30 days had elapsed.
On September 20 2021, Mapeto DWS executives through their lawyers led by lead counsel John- Gift Mwakhwawa drew Kayira’s attention to an injunction granted by Judge Chima.
Full trial had just started with the State parading its first witness Deborah Hauya, an employee of Malawi Revenue Authority (MRA), who was giving her testimony when the defence produced the High Court order.
On May 23 2021, MRA pounced on Mapeto DWS Limited and arrested five senior executives for multiple cases of alleged tax evasion which then was estimated at K10.8 billion before it was revised to about K16.4 billion
