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NPA pins hopes on SCA to overturn permanent stay of prosecution for 13 Kimberley-based diamond dealers

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The 13 faced 139 counts pertaining to illicitly dealing in diamonds.

The National Prosecuting Authority has approached the Supreme Court of Appeal (SCA) in Bloemfontein to overturn a decision that secured a permanent stay of prosecution against 13 Kimberley-based diamond dealers.

According to the roll of the SCA, the court will hear the NPA’s application on May 7.

Citing the Northern Cape Director of Public Prosecutions as the applicant, the roll lists all 13 accused in the collapsed prosecution as respondents.

They are Ashley Brooks, Patrick Mason, Monojkumar Detroja, Karel Van Graaf, Sarel Van Graaf, Trevor Pikwane, Kevin Urry, Jan Weenink, Mcdonald Visser, Antonella Florio-Poone, Ahmed Khorani, Komilan Packrisamy and Frank Perridge.

The 13 faced 139 counts pertaining to illicitly dealing in diamonds. Police obtained their evidence by using an agent to trap diamond dealers into illicit transactions.

Transactions amounting to R28 million were traced. Their range of charges included illicit diamond dealing and racketeering.

In September 2018, Judge Johann Daffue, a Free State judge who was asked to hear the matter as it could not be allocated to any Northern Cape judges, granted the application by the accused for a permanent stay of prosecution, finding that the accused had been prejudiced by unreasonable delays. 

He described the proceedings “as a comedy of errors”.

The trial had already suffered a blow before the stay of prosecution application.

The initial judge recused herself from the trial apparently due to threats she received for presiding over the matter, forcing the State to start the trial afresh.

Judge Daffue was at pains to explain that permanently staying prosecution was an extraordinary remedy, but maintained it was warranted in this case.

He said he had weighed societal demand that accused people should trial for serious crimes “with the prejudice already suffered and to be suffered” if the trial was to start afresh.

“Some of the applicants are almost seventy years old,” Judge Daffue pointed out.

“They might have been completely mulcted with legal costs in order to defend themselves in the criminal case in the High Court over a period that could be as prolonged as four to six years, whilst the matter should have been finalised within a year or two.”

In December 2018, Daffue also dismissed with costs an application by the Director of Public Prosecutions, Northern Cape for leave to appeal to the Supreme Court of Appeal  his judgement for the permanent stay of prosecution. He described the application “as totally defective to say the least”.

“I am of the view that the actions of the DPP and State advocates deserve to be censored. They knew for two years that there were attempts to threaten and/or bribe the trial judge and to bribe their star witness and trap, but kept that a secret. Two years later they out of the blue spilled the beans.” 

He added further that the DPP had failed to show that the appeal would have a reasonable prospect of success or that there is some compelling reason why the appeal should be heard.

The application to the Supreme Court of Appeal is the latest attempt to have the ruling overturned.

According to the SCA’s bulletin the appeal arguments will look into “whether the (high) court was correct in finding that there was indeed an unreasonable delay” and “whether the respondents’ right to a fair trial has been compromised”. The court will also be asked to determine whether it will be appropriate for the trial to commence anew and whether  the constitutional right to a fair trial (a trial that begins and ends without unreasonable delay) was denied to respondents.

The appeal will be heard by Judges Petse DP, Mocumie JA, Molemela JA, Ledwaba AJA, Eksteen AJA.