State has no witness ready in gem trial

JUDGE Bulelwa Pakati, presiding over the multimillion-rand Project Darling illicit diamond buying case currently being heard in the Northern Cape High Court in Kimberley, yesterday granted the State a postponement in the matter until next month, despite heavy objection to the application from the defence council.

Thirteen high-profile names in the local diamond industry stand accused of illegal diamond dealing, possession and sale of unpolished diamonds, money laundering and racketeering following an undercover police operation where an undercover agent, Linton Jephta, allegedly conducted several illicit diamond transactions with the accused.

State Prosecutor Johan Roothman started yesterday’s proceedings by bringing an application for the trial to be postponed until March 12 after the case’s investigating officer (IO), Warrant Officer Louis Potgieter, was booked off by a doctor and declared unfit to continue with court proceedings until March 1, after he fell ill earlier this week while testifying as a State witness.

Potgieter indicated that he was suffering from post-traumatic stress disorder (PTSD) and was experiencing headaches as a result of medication that he was taking.

Roothman referred to a previous court ruling, where Judge Pakati stated that another witness should be ready in the event that Potgieter fell ill again. This ruling came after Potgieter had also fallen ill while testifying earlier during the trial.

Roothman, however, indicated that he did not have a witness ready as the two potential witnesses he wanted to use as “stopper witnesses” (replacement witnesses) were also not available to testify during the current session, as one, Frans Volschenk, was also booked off sick and the other, Captain John Serfontein, was on a training course.

Roothman added that he had also not yet finalised his consultation with the undercover agent, Jephta, rendering the witness “not court ready” and leaving the State “in a predicament”.

The defence team representing the accused heavily opposed the application for postponement, with advocate Terry Price SC even submitting that Potgieter should never have been called as a witness as he was suffering from “a serious mental illness” (PTSD) that he “could not recover from”.

Price added that now would have been the ideal time to call Jephta, who is considered to be a “crucial witness”.

Price requested Judge Pakati to refuse the postponement and close the State’s case immediately.

Advocate Max Hodes agreed with this request and added that the State had ample time (four years) to prepare the three witnesses and that the accused were being seriously prejudiced by further postponements.

Advocate Laurence Hodes also urged Judge Pakati to refuse any further postponement and for her to “put her foot down” and order the State to close its case.

Advocate Saleem Ebrahim further referred Judge Pakati to an earlier instance during the trial (in 2015) where Potgieter was booked off for six months as a result of illness and said that the State had known that he suffered from an incurable disease.

Advocate Ferdi van Heerden also requested Judge Pakati to refuse the application for postponement and order the State to close its case as the accused were suffering prejudice through loss of income and business as a result of postponements.

Roothman responded by making an undertaking that, if the application for postponement was granted, he would have another witness ready if Potgieter was still unable to testify at the start of the next sitting, on March 12.

He added that the State’s case would be “hugely prejudiced”, to the point of possibly “destroying the case”, should the application for postponement be refused.

Roothman further stated that it was a strategy and “tactical decision” by the State not to call Jephta now and that doing so would “confuse the record”.

Hodes requested that Judge Pakati subpoena Jephta to come and testify, saying that his evidence was “essential” and his testimony would “solve all the problems and issues” currently experienced.

In her ruling, Judge Pakati said that the defence had no right to determine the State witnesses and the sequence in which they appear, (and vice versa) and that both the State and defence should be given equal opportunity to present witnesses.

With regard to the calling of Jephta, Judge Pakati said that, considering the current length of the record (more than 3 000 pages), the State could not just quickly consult with Jephta before his appearance and that it would also not be in the interest of justice to “just close the State’s case”.

She then went on to grant the State its application for postponement to March 12 and sad that an earlier undertaking from Roothman (to have witnesses ready if Potgieter is not available) would be made “an order of the court”.