Judge Pakati concluded by ordering (not requesting) Potgieter to see a doctor, get medication and present the court with a sick note
THE INVESTIGATING officer (IO) in the Project Darling illicit diamond buying case fell ill yesterday and was unable to continue with his testimony in the Northern Cape High Court in Kimberley.
The IO, Warrant Officer Louis Potgieter, had also fallen ill while presenting his evidence in chief, during a previous session, and was “booked off” due to hypertension.
This forced the State to call another witness to the stand, advocate Abraham Johannes Botha, who was the Deputy Director of Public Prosecutions (DPP) in the Northern Cape during Project Darling, the undercover operation where an undercover agent, Linton Jephta, allegedly conducted several illicit diamond transactions with the 13 high-profile accused currently in court.
Potgieter, however, returned to the witness stand on Monday, after Botha concluded his testimony during the previous court sitting.
Yesterday’s proceeding kicked off with a ruling by Judge Bulelwa Pakati regarding the presentation of video footage and photographs, after State advocate Johan Roothman wanted to present as evidence in the trial-within-a-trial the video footage (and photographs taken from the footage) recorded by Jephta during the alleged transactions, while Potgieter was testifying.
Roothman indicated that the State would later be calling Jephta (the participant in the footage) as a witness and that he would be able to testify about the content.
The defence team, however, strongly opposed the handing in of this evidence while Potgieter was testifying, with legal representatives arguing that Potgieter did not participate in the recordings and that he would not be able to corroborate the information contained therein, and further stating that there was no basis to allow this request from Roothman.
They argued that presenting the evidence through anyone but Jephta, would be “irrelevant”.
Judge Pakati ruled that it would indeed only be relevant to view/listen to the audio/video recordings when presented while Jephta (who is still to be called as a witness) is testifying and that he (Jephta) would be the relevant person to give testimony on the content.
Judge Pakati did add that she would only be able to say whether Jephta went “beyond creating an opportunity to commit an offence” (including his degree of insistence and number of attempts during the alleged transactions) if she saw/heard the recordings, but that it would only be relevant to do so when Jephta came to testify.
An initial objection by the defence to the handing in of video/audio evidence by the State is what brought on the current trial-within-a-trial.
After Judge Pakati’s ruling, Roothman made a further application to either have Potgieter stand down, call Jephta (to present the video/audio evidence) and then have Potgieter recalled to testify with regard to the video/audio evidence, or continue to lead Potgieter up until the point of evidence regarding the video/audio recordings and then recall him later (after Jephta testified).
After an adjournment, allowing Roothman to “strategise”, he indicated to the court that he would continue with Potgieter’s testimony (while not referring to video/audio evidence) and that Potgieter would later be recalled if necessary.
However, after the lunch break Roothman indicated to the court that Potgieter was suffering from a “severe headache” and would not be able to continuing testifying for the rest of the day.
It came to light that Potgieter was taking medication for post-traumatic stress disorder (PTSD) and that the headache was an apparent side effect.
The defence requested that if Potgieter was unable to continue testifying today, that the State have another witness (with many insisting that be Jephta) ready to replace Potgieter as a witness.
Judge Pakati requested that this be the case and Jephta be called if Potgieter was not available, but Roothman responded by saying this was “simply impossible” as he, while intending to call Jephta as a “main witness”, had not yet properly consulted with him and that he lived in Cape Town.
Roothamn added that he also intended to call Dr Frans Volschenk, from Africa Ulwazi Management (AUM), and Captain John Serfontein as witnesses but that they too would be unable to come to court during this week’s session.
Judge Pakati, however, referred Roothman to a ruling she had made after Potgieter fell ill the previous time, where she ruled that a “stand-by witness” must be available should Potgieter be unavailable to testify, adding that she was under the impression that Jephta was available to testify following Roothman’s earlier application.
Judge Pakati concluded by ordering (not requesting) Potgieter to see a doctor, get medication and present the court with a sick note.
The case continues today but it is still unclear who will be in the witness box.