‘Suffered tremendous hardship’
Roothman wanted this court to believe the section he so heavily relied upon is really a red herring and could never have been intended to allow the SAPS to pay millions of rand to traps.
“How much should a witness be paid to come to court and tell the truth? How will justice be served if an unsavoury and avaricious character is allowed to be paid vast amounts of money to testify for one party and later accepts huge sums of money from the opposition not to testify?” Daffue asked.
He added that the concept of “buying” witnesses was “reprehensible” although it was apparently accepted practice in the SAPS.
Daffue said further that a “worrisome issue”, brushed aside by the State in its answering affidavits, included the fact that the State included a charge of racketeering on the basis of a criminal enterprise and as indicated “supra” with the members thereof, as alleged by the State, including its star witness (Jephta) the former IO (Potgieter) and Erasmus, against the accused.
“Clearly, the State tried to blow up the case to something more serious than illicit diamond dealing. (Lieutenant-Colonel John Walters) Serfontein conceded in his testimony that a forensic analysis of the cellphone records did not substantiate these allegations. Furthermore, two of the three persons forming the criminal association (enterprise), as the State wants everyone to believe, had access to 11 unregistered, unmonitored and unrecorded cellphones during the entrapment process. This is incomprehensible and would be an exercise in futility to remedy such a flaw.”
Daffue said that the “most damning aspect” in respect of the State’s case was the “character and attitude” of its “star witness”, Jephta, who was yet to testify.
“On his own version, he (Jephta) personally contacted at least one of the accused and allowed people to negotiate with him not to testify for the State and even to splash his ‘story’ of being forced by his handler to make false statements in a local newspaper. A State witness with integrity would not even agree to meet with accused persons or people having connections with the accused, allowing them to make offers to him. His credibility is in tatters – even junior council will be able to tear him to pieces within a few minutes. It would be the end of the State’s case.
“The question to be asked is simply this: Why must the applicants go through another trial to see whether Jephta eventually turns up, whilst the State elected to call all formal and other not so important witnesses during the previous trial, keeping the trap away from the witness stand,” Daffue said.
“Not only did Jephta receive R1 million for his involvement in entrapment but he demanded a further R4 million to testify. This might have been inadmissible hearsay, based on a possibly incorrect version of him to a newspaper reporter in the DFA newspaper as early as April 7 2016, (before the start of the trial) but credence can be placed on the essence of the report – that Jephta wants more money to testify. Botha testified that Jephta approached him for more money. Both him and Lieutenant-Colonel De Witt Botha confirmed under oath that an amount of R1 million had already been paid to the agent, it being an exception in that the claim was submitted before the conclusion of the case. The State did not file an affidavit by Jephta to refute the allegations made to the journalist and to confirm his willingness to testify. I have been informed that Colonel Botha conceded in his testimony that Jephta demanded further payment to the amount of R4.2 million. Roothman did not object to this information and it must be accepted to be a true reflection of the evidence,” Daffue stated.
Coming to the end of his judgment, Daffue said that the applicants “should not be subjected to a further trial”.
“Not only may the State try to rectify mistakes made but, as indicated during argument, the applicants will have even more ammunition to further cross-examine witnesses who have already testified, bearing in mind what others have testified about later. There can be no fairness in allowing the State a proverbial second bite at the cherry. There are no suitable, less drastic measures available to the applicants. They have suffered tremendous hardship.”
Daffue stated that he was of the view that it was necessary for the court to protect the integrity of its own processes and to take the required steps to avoid injustices such as unjustified delays caused by systematic failures and conduct of legal representatives and even presiding officers.
“I considered the societal demand that an accused should stand his trial, particularly in the event of serious crimes as in this case, but I weighed that with the prejudice already suffered and to be suffered, both trial related and not trial related, if a de novo trial is allowed to proceed.
“I also considered the State’s in limine submission that the application is premature in that there is no pending case as the de novo trial has not started yet. This a red herring. The indictment still stands and the State has made it clear that it wants to start de novo. All applications are still on bail and no charges have been withdrawn. There is no reason for the applicants to wait any longer.
“Consequently, I have come to the conclusion, may I say with some reluctance, that the applicants should not be subjected to further prosecution,” Daffue said, before ordering that “the prosecution against all thirteen applicants instituted by the DPP, Northern Cape, containing 139 counts, encompassing all relevant dockets pertaining to the case is permanently stayed”. damage” to their reputations as credible businesspeople.
Judge Johann Daffue yesterday highlighted this prejudice, relied upon by the applicants in their application.
While Daffue stated that the prejudice of applicants, which is not trial related, played a “relatively insignificant” part in evaluating an application for a permanent stay of prosecution, he still deemed it apposite to highlight.
“No doubt, the public is obsessed with sensation and the media thrive on that. Therefore much publicity is afforded to the prosecution of prominent members of society, while crimes committed by unknown persons hardly reach the newspapers, unless their crimes were directed at prominent citizens,” Daffue stated, before briefly indicating the uncontested prejudice (suffered since their arrests in 2014) relied upon by the applicants as follows:
Ashley Brooks is a registered diamond dealer, whose house was forfeited on application by the Asset Forfeiture Unit (AFU). He had to appeal to the Supreme Court of Appeal, which upheld his appeal. Business associates do not want to do business with him and this has had a crippling effect on his business. His legal costs are in excess of R1.5 million.
Patrick Mason is a licensed diamond miner. Several of his deals have been put on hold, including those with key players such as De Beers. He spent more than R2 million on legal fees.
Manojkumar Detroya is a foreigner who has built a career in South Africa but has lost his clients as a result of negative publicity. His legal costs are in excess of R1.5 million.
Komnilan Packirisamy had to pay R346 400 as security for the release of his 20% interest in a family home. According to him, his reputation has been tarnished to the extent that Absa closed all his accounts without providing reasons.
Ahmed Khorani – to date, no witness has been able to attribute any suspicious conduct to him. Advocate Abraham Johannes Botha was unaware of any allegations against him.
Antonella Florio-Poone had to pay R500 000 to the AFU to release her motor vehicle. She paid R700 000 in legal fees. Her diamond businesses have been hampered due to negative publicity.
McDonald Visser could not renew his diamond dealer’s licence as a consequence of the trial. His business came to a standstill. He was earmarked to serve on the board of the Department of Economic Development but he withdrew due to the case against him.
Willem Weenink is a licensed diamond dealer. His father-in-law was a former chief magistrate and the negative publicity had an adverse effect on the whole family. He spent R1.25 million on legal fees.
Sarel van Graaf is a registered diamond dealer. Cash and diamonds to the value of R3 240 000, unrelated to the prosecution, were attached and the uncut diamonds, valued at R505 920 have not been handed back to him.
Carl van Graaf got divorced as a result of the trial. He is a registered diamond dealer and also a mechanic on the mines. As a result of the case, he does not get any work as a mechanic anymore. He is receiving Legal Aid.
Kevin Urry had diamonds valued at R3 million seized, as well as cash. Botha conceded that there was no authorisation granted for his entrapment.
Trevor Pikwane was requested to step down as member of Umnotho Wesiswe, a mining company, due to negative publicity. His bank issued a summons against him and brought a liquidation application against the closed corporation of which he is a member, due to the prolonged criminal proceedings. More than 1 000 carats of diamonds were confiscated and are still in police custody.
Frank Perridge is 67 years old and a registered diamond dealer. He sold diamonds to purchasers in Belgium but since the case started that business has dried up. He is also receiving Legal Aid.