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Supreme Court of Appeal rules on diamond application

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The Supreme Court of Appeal has upheld an application by the Director of Public Prosecutions to dismiss an application for a permanent stay of prosecution against 13 prominent Kimberley diamond dealers.

Seen here is some of the accused in what has been labelled SA's biggest diamond case. Picture: Soraya Crowie

THE SUPREME Court of Appeal has upheld an application by the Director of Public Prosecutions to dismiss an application for a permanent stay of prosecution against 13 prominent Kimberley diamond dealers.

The Supreme Court of Appeal, in a judgement handed down on July 2, replaced the earlier decision by the Northern Cape High court to grant the permanent stay of execution to the respondents, namely 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 appeal by the Director of Public Prosecutions followed a judgment handed down in September 2018 by Free State Judge, Judge Johann Daffue, in the Northern Cape High Court in Kimberley that the prosecution against the thirteen respondents, containing 139 counts, be permanently stayed. 

Judge Daffue took over the case following the recusal of the trial judge, Judge Bulelwa Pakati, at an advanced stage of the criminal proceedings. 

The respondents contended that their constitutional right to a fair trial within a reasonable time, had been infringed by irregularities giving rise to delay, and eventually the recusal of the trial judge. 

The 13, who were originally arrested in August 2104, faced 139 counts pertaining to illicitly dealing in diamonds.

Police obtained their evidence by using an agent to trap diamond dealers into illicit transactions in an undercover project dubbed “Operation Darling”.

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

Judge Daffue, who found that the accused had been prejudiced by unreasonable delays, described the proceedings “as a comedy of errors”.

The appeal was heard by a full bench of judges, including Judges Petse, Mocumie, Molemela, Ledwaba AJA, Eksteen AJA.

The Supreme Court of Appeal, however, found that the delay was not unreasonable.

Judge Eksteen pointed out that a permanent stay of prosecution would not be granted unless the court was satisfied that there existed an unreasonable delay.

“Whether a delay is unreasonable depends upon the circumstances of each individual case. In order to determine whether a particular lapse of time is reasonable the court will perform a ‘balancing act’ in which the conduct of both the prosecution and the accused, the length of the delay, the reason which the State assigns to justify the delay and the prejudice to the accused are weighed. The most important factors bearing upon the enquiry relate to the nature of the offence, the length of the delay and the reasons given therefor and the prejudice, actual or potential, to the accused,” Eksteen explained.

He pointed out further that the remedy of a permanent stay of prosecution has been described as ‘extraordinary’.

“The charges against the respondents included racketeering, corruption and illegal dealing in uncut diamonds. These are serious offences. Racketeering may attract a sentence of life imprisonment and corruption, which is disturbingly prevalent in South Africa, undermines the moral fibre of our society.”

“The right of an accused to a fair trial requires fairness not only to him, but fairness also to the public as represented by the State. It must instil public confidence in the criminal justice system and in cases involving serious crime the interest of society demands that the State bring an accused to trial.”

Judge Eksteen added that in respect of the prejudice, or potential prejudice, each of the respondents had also set out the personal prejudice which they had suffered.

“Their arrest enjoyed considerable publicity, each was required to pay a substantial amount for bail and they personally were exposed to negative publicity which affected not only their persons but also their business interests. Their children have been subjected to ridicule at school and their finance houses have shown greater reluctance in assisting them. Each has engaged counsel of varying seniority but in every case at considerable expense. However, a permanent stay of prosecution will generally only be granted where trial related prejudice has been suffered, unless there are circumstances rendering the case so extraordinary that a permanent stay of prosecution is the only appropriate remedy. A party seeking a permanent stay of prosecution is required to show ‘definite and not speculative prejudice in order for it to be considered irreparable trial prejudice’.”

Judge Eksteen pointed out that in this instance, by virtue of the recusal of the trial judge, all proceedings before her had been nullified. 

“Proceedings would accordingly be required to start de novo (from the beginning). It is, however, for the prosecution to decide whether proceedings would be instituted afresh, and if so, in respect of which offences. They may decide to proceed on lesser charges, or against only some of the respondents, but they should have the opportunity to do so. As I have said, the stay application was launched just 14 days after the recusal. This is not a case where the DPP has shown any dilatoriness in this respect and there is no evidence that they have been put to terms to take such a decision.”

He stated that in final analysis the court was required to exercise a value judgment in assessing the reasonableness of the delay. 

“On due consideration of the nature of the offences in issue, the delays in the course of the prosecution, the circumstances which gave rise to the recusal as well as the prejudice occasioned to the respondents, I do not consider that the delay, in the context of this case can be said to be unreasonable. Nor, in my view, have the respondent shown actual trial prejudice if the trial were to commence de novo. 

“The case is not so extraordinary that a stay of prosecution is the only appropriate remedy. However, objectively, the delay has been substantial, even though it is not due to the dilatoriness or misconduct of the State. In these circumstances the State would be well advised to proceed without delay, and to expedite the process wherever possible, if it does choose to proceed de novo against the respondents,” Eksteen, stated.

Judge Molemela (Judges Mocumie and Ledwaba concurring) said that although he agreed that the appeal ought to succeed, he did not believe that costs should be awarded to the State.

“I tend to agree with the high court’s postulation that given the fact that this was an entrapment case, one would have expected the State to have had all its ducks in a row. Alas, there were numerous postponements for purposes of furnishing further particulars.”

He added that this was “not a matter in which the State was blameless in relation to the numerous postponements that were occasioned during the course of the trial. The respondents can certainly not be regarded as the primary source of the delays. Notably, some respondents did not, at any stage, participate in any of the interlocutory proceedings which delayed the finalisation of the proceedings. In my view, disentitling the State to an order of costs despite its success in this appeal would, under the circumstances, be the appropriate way of indicating this court’s displeasure with the State’s overall conduct in relation to this matter.”