Video images inadmissible – judge
THE ADMISSIBILITY of video footage, collected by an undercover agent during one of the biggest illicit diamond dealing investigations in South African history, dominated proceedings in the Northern Cape High Court yesterday when the trial-within-a-trial of 13 prominent people involved in the local diamond industry continued.
The accused – Ashley Brooks, Patrick Mason, Manojkumar Detroya, Komilan Packirisamy, Ahmed Khorani, Antonella Florio-Poone, McDonald Visser, Willem Weenink, Sarel van Graaf, Carl van Graaf, Kevin Urry, Trevor Pikwane and Frank Perridge – were arrested by the Hawks in August 2014 following a covert police operation called “Project Darling” that took place from February 2013 to February 2014.
They face charges of illegal diamond dealing, possession and sale of unpolished diamonds, money laundering and racketeering.
During the operation an undercover agent, Linton Jephta, was assigned to infiltrate identified individuals (suspects). His assignment was to purport that he was unlawfully selling unpolished diamonds, which in fact belonged to the State. Numerous alleged transactions led to the arrest of the accused.
On Monday, the case’s investigating officer (IO), Warrant Officer Louis Potgieter, from the Directorate for Priority Crime Investigation (Hawks), returned to the witness stand and was led as State witness by State prosecutor Johan Roothman.
As Roothman continued questioning Potgieter yesterday, the IO said that he had first learned of Jephta when he received a phone call from Cape Town to inform him that there was an individual with information about illicit diamond dealings taking place in the Northern Cape.
“The day after the call I arranged a flight for Jephta to Upington, where I met him and took his statement,” said Potgieter yesterday.
“He mentioned that he was angry with Van Graaf, who he said owed him money.”
“He told me that he had a wife and children and wants to do the right thing for the first time in his life.”
Potgieter said that while drawing up a profile of Jephta, it came to light that the agent had previously faced several charges, all of which had been withdrawn.
“I was satisfied that he would be a suitable agent because he said he wanted to do the right thing and some of the information was accurate,” said Potgieter “I had no reason not to trust him.”
During yesterday’s testimony, the warrant officer conceded that there were a number of claims in Jephta’s statement to his handlers that had not been verified, including claims that Van Graaf had purchased a 72-carat diamond for R90 000 and sold it for either R76 million or R96 million to a person identified as Michael Sylla, who allegedly had ties to an illicit diamond and drug dealer based in Zurich, Switzerland.
Other information that had not been verified included claims that Jephta had met Mason through Brooks and that Jephta had once taken diamonds to Mason on behalf of his former employer, earning an extra R20 000 for his efforts.
According to Jephta’s sworn affidavit, this was the first of three similar transactions he made with Mason.
Potgieter was also unable to confirm Jephta’s claims that he had overheard a conversation between Van Graaf and an unidentified person, warning him of a trap that had been set for him.
Most of the day was focussed on the admissibility of photographs as evidence in the trial itself, with the prosecution arguing that still images taken from video footage be submitted into the trial-withintrial as no ruling had been made to the contrary.
“My submission is that the pictures and videos are admissible,” Roothman told the court. “It was never ruled that the videos can’t be played during trial-within-a-trial”
Shortly before court adjourned for lunch, Judge Bulelwa Pakati pointed out that, in terms of the trial-within-a-trial, the question before the court was whether Jephta had gone beyond merely encouraging the suspects to commit the illicit transactions and that the onus was on the State to prove that the agent had remained within the stipulated guidelines. She ruled the images to be inadmissible.
When court resumed, Roothman maintained that the images should be admissible, resulting in an objection from the defence, with advocate Terry Price stating that the prosecutor’s actions bordered on contempt of court.
“Your Ladyship has made a decision because this trial-withina-trial is about the admissibility,” said Price. “We need to compare apples with apples.
“If you look at the court record, Patrick Mason confirmed that Jephta was at his house, Brooks was present and that Jephta showed him a permit.
“What are you going to prove by showing video? You have a witness taking selective pictures from a movie. You could turn Donald Duck into a horror movie like that.
“Should the court find that the police acted fairly, then we can look at the video but at this point we are attacking the source, not the result.
“Having a look at the video would be like having a peak at the confessions and would poison the mind. The video is the culmination of illegal police activity up to that point.”
The matter will continue before Judge Pakati this morning.