“The non-disclosure of the said e-mail by the State, which creates an impression of bias in the accused’s minds."
AFTER four years of facing charges in one of the biggest illicit diamond buying (IDB) trials in the history of South Africa, thirteen accused, who include some of the biggest names in the local diamond industry, might possibly walk free.
Judge Bulelwa Pakati yesterday dropped a bombshell when she recused herself as presiding officer in the matter.
The accused – Ashley Brooks, Patrick Mason, Monojkumar Detroya, Komilan Packirisamy, Ahmed Khorani, Antonella Florio-Poone, Kenyaditswe Visser, Willem Weenink, Joseph Sarel van Graaf, Carl Steve 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”.
The police operations was conducted from February 2013 to February 2014.
During the operation an undercover agent, Linton Jephta, was assigned by the police to infiltrate identified individuals in Kimberley and Johannesburg.
His assignment was to purport that he was unlawfully selling unpolished diamonds which, in fact, belonged to the State. Numerous transactions led to the arrests of the accused.
Together they face 139 charges ranging from racketeering, pattern of criminal gang activities and the purchase of unpolished diamonds, in contravention of the Prevention of Organised Crime Act, the Diamonds Act and the Prevention and Combating of Corrupt Activities Act, read with sections of the Criminal Law Amendment Act.
While the four-year-long trial has been highlighted by several unexpected twists and turns, even the State prosecutor, Johan Roothman, was yesterday at a loss for words when Pakati delivered her judgment in the application to recuse herself from the matter (brought by the defence).
“I have never been in this position (where a judge recused himself or herself) and I am not really sure as how to proceed from here,” Roothman said.
Several legal representatives, on behalf of their clients, last month launched an application for Pakati’s recusal on the basis that she did not disclose an e-mail in which an attempt was made to “unduly influence or bribe” her.
Pakati wrote to the Security Head attached to the Office of the Chief Justice, Rozanna Aysen, on August 16 2016, stating the following: “On Sunday, August 14 2016, I was at home when Mr Phumelele Gugu, my homeboy, arrived. He is a captain in the South African Police Service and is stationed in Kimberley. He told me that he was phoned by one Khaya (surname unknown), a diamond dealer in Kimberley.
“Khaya informed him that he knows that he (Captain Gugu) is close to me. They also know that I drive a black Jeep with a GP registration. He said that I (am giving) the accused (a) hard time in the diamond case that I am handling. Therefore he should talk to me and find out what I would want them to do for me so that I do away with it.
“He further told me that he told Khaya that he was not in Kimberley and could not discuss such a matter over the phone. He said Khaya wanted to know from him when he would return.
“Captain Gugu then told me that he is concerned about what would happen to me after he tells Khaya that I want nothing from them. He suggested that I stop using my car for a while if I can, for my and my children’s safety. I felt scared that my life and my children’s lives were at risk. I think Captain Gugu is unsafe too.”
About half an hour later the mail was forwarded by Aysen to advocate Abraham Johannes Botha, who was the Acting Director of Public Prosecutions (DPP) in the Northern Cape during Project Darling.
He was called as a witness for the State earlier this year.
During yesterday’s judgment in the application, Pakati said that the application was launched on the following basis:
“The non-disclosure on my part of an attempt to unduly influence or bribe me by one Khaya, surname unknown to me, through a SAPS captain, Phumelele Gugu, creating a reasonable apprehension that I would be impartial.
“The non-disclosure of the said e-mail by the State, which creates an impression of bias in the accused’s minds.
“The handing over of affidavits from the (undercover) agent (Jephta), that there were also attempts to unduly influence him and the possible influence the statements might have, resulting in an unfair trial,” Pakati stated.
She added that after sending the e-mail to Aysen, she “received no feedback as to what happened as a follow-up to the report”.
She did, however, draw the court’s attention to what transpired during arguments in the initial application for recusal on July 31.
“It transpired during arguments that, just before the court resumed, four affidavits deposed by Jephta, a State witness who was scheduled to testify that morning, were handed by the State to the defence for the first time.
“The essence of what is contained in those affidavits, as mentioned by the defence, is the fact that attempts were made to bribe Jephta for or on behalf of the accused on various times and at various places.
“There was, however, no mention that he accepted any payments. It is worth noting that Warrant Officer (Louis) Potgieter (project Darling’s investigating officer) is the commissioner of oaths in the first two affidavits.
“Advocate Laurence Hodes argued that it is significant that these attempts took place in 2016, while the defence was only notified in 2018. The defence further argued that the attempts (mentioned above) were intended to weaken the case for the accused, thereby giving an impression that there is a strong case against them.
“They also argued that my disclosure resulted in an unfair trial and that a perception of bias has been created in the minds of the accused, which necessitates my recusal,” Pakati stated.
Pakati again highlighted the fact that she was neither aware that her e-mail was forwarded to the Office of the DPP for decision, and the SAPS for investigation, nor was she informed of the decision by the Office of the DPP.
“I proceeded with the trial under the impression that nothing came from my e-mail. However, it raises a question as to why the State decided to hold on to the agent’s statements for this long and not ‘discover’ them when the defence asked for further particulars.
“The State, instead, told the court that there was nothing more to discover. It is therefore also mind-boggling that, on the day the agent was supposed to testify, the State handed over the statements to the defence.
“In my view prosecutors are officers of the court and have an obligation to the court to see that justice is done at all times,” Pakati said.
She concluded by giving her judgment as follows: “Turning to the facts of this case, I am of the view that a reasonable person in the position of the accused would, under the circumstances, reasonably think that I would be biased, taking into account the affidavits by Jephta, which were only given to them on the morning he was scheduled to testify.
“It is therefore in the interest of justice that I recuse myself at this stage,” she stated.
Following consultations in chambers, Judge President Pule Tlaletsi presided over a postponement of the matter to later this month.
Roothman indicated that the defence would be bringing an application for a permanent stay of prosecution during the next appearance. This could see the 13 accused “walk free” if successful.