‘Suf­fered tremen­dous hard­ship’

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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.

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