Prison is not a hotel, judge tells accused
A bookkeeper facing multimillion rand fraud charges, unhappy with prison conditions, has been told by a judge to accept the “undesired consequences” of being in jail.
Faried van der Schyff and eight others face 711 charges for racketeering, money laundering, fraud and forgery and uttering related to fictitious VAT refund claims by car dealerships and businesses in the property and building industry.
Van der Schyff, who once worked for the South African Revenue Service (Sars), is implicated with an alleged underworld figure as an alleged “kingpin” in the fraud against Sars.
Businessman Nafiz Modack is the other alleged “kingpin”. He is already on trial with co-accused facing 124 other charges, including the murder of anti-gang-unit detective Charl Kinnear in Cape Town. That trial must end before the VAT fraud case can start.
Judge Daniel Thulare did not mince his words this week when presented with “new facts” on why Van der Schyff should be released on bail, including Pollsmoor prison not being conducive to preparing for trial, as well as health concerns and financial woes caused by being in custody.
“Both may be at the foot of the most scenic mountain range in Cape Town, but there is a vast difference between the purpose, offers, packages and facilities at the Twelve Apostles Hotel and Spa and Pollsmoor Correctional Facility. This is the simplest truth to which [Van der Schyff] must awaken,” said Thulare, who dismissed the application.
The former senior revenue clerk, employed by Sars from 1992 to 1999, argued the contents of the printed docket would fill 56 lever arch files, which were impractical to store in prison. The state, he said, was unwilling to pay for an electronic reading device to peruse the papers digitally. Prison authorities had installed a steel cabinet in a cell next to the one he shared with other inmates to store his documents, but he said it was too small, stored toxic cleaning materials, had no ventilation or light or even a table to use as a work station.
He said he and his wife suffered from medical conditions, were forced to sell their home due to bond arrears, his policies had lapsed, his car was repossessed, his overdraft was cancelled, there were outstanding medical bills, security accounts and subsistence expenses. He was the breadwinner before his arrest and had been detained for more than two years.
“He and his family suffered greatly physically, mentally, emotionally, in their health and financially by his length of imprisonment in what he considered one of the world’s worst prisons,” reads the judgment.
Opposing the application, the National Prosecuting Authority said the case docket was 20,324 pages long. Dockets were given electronically to legal representatives — as done in this case.
Thulare was not persuaded by the “new facts”, ruling Van der Schyff’s personal circumstances were “nothing exceptional”.
“Almost every breadwinner who is incarcerated leaves behind a financial void which adversely affects those who depended on such a person. Similarly, the mystery of life is that all people live with one or other health issues. Life is so mysterious that some are actually dying from covert illnesses without knowing it, until their death is pronounced,” said Thulare.
Not being able to attend the funerals of loved ones while in custody was “one of the undesired consequences of being in detention”.
Thulare said correctional services had taken extraordinary measures to ensure a cell was suitable for his needs but he refused to take occupation, indicating an unwillingness to “play his part in ensuring that he was able to prepare for his defence. In fact he is deliberately making it impossible to be in a position to intelligibly engage with his legal representatives to prepare for his trial,” said Thulare.
“When he was aware that resources were being sought to accommodate him, he complained of those still to be provided, like a table and a chair. This demonstrates how low the applicant was prepared to stoop with trivial things to avoid preparation.”
Thulare said he could not refuse to be held in solitary confinement when it was offered, then be heard to complain about sharing a cell with others and “seek to use his detention with others as a reason to be granted bail”.
“While the applicant was still playing hide and seek for his readiness, preferring to share a cell with others as opposed to taking occupation of a cell provided for his study of the papers, the trial in the other matter [involving Modack] is continuing,” added the judge.
Legal Aid South Africa will in the meantime evaluate the need for an electronic reading device or laptop to be used during prison consultations by the attorney representing Van der Schyff.