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They ‘should not be subjected to a further trial’

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The concept of “buying” witnesses was “reprehensible” although it was apparently accepted practice in the SAPS

CELEBRATION: Some of the accused celebrate their victory in the Northern Cape High Court following yesterdays order. Picture: Norma Wildenboer
IN A DAMNING judgment, the State’s case against 13 prominent names in the local diamond industry was yesterday obliterated when Judge Johann Daffue ordered that the prosecution against all the accused in the “Project Darling” case, involving 139 counts and considered to be one of the biggest illicit diamond buying (IDB) cases in the history of South Africa, be permanently stayed, leaving them to walk free from the Northern Cape High Court in Kimberley.
This means that the 13 former accused – Ashley Brooks, Patrick Mason, Monojkumar Detroya, Komilan Packirisamy, Ahmed Khorani, Antonella Florio-Poone, McDonald Visser, Willem Weenink, Joseph Sarel van Graaf, Carl Steve van Graaf, Kevin Urry, Trevor Pikwane and Frank Perridge – who were arrested during raids in August 2014 on 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, walked out “scot-free”.
The application for a permanent stay of prosecution by the State, brought by the 13 accused, was triggered by the recusal of Project Darling’s trial Judge, Bulelwa Pakati, on August 13 this year.
Starting off the judgment yesterday, Daffue, who was brought in from the Free State High Court in Bloemfontein to preside over the application, conceded that whatever his final decision would be, “it would have far-reaching consequences, whereas if the application was granted, persons that might have been convicted of serious crimes will get off scot-free, while if the application was dismissed, the State will have to start the trial de novo (anew)”.
Referring to the “material background” of the matter, Daffue stated that during March 2013 to February 2014 “an operation was embarked upon in terms whereof a State agent (Linton Jephta) acted as a trap in order to secure transactions with various individuals pertaining to illicit dealing in diamonds”.
“Several transactions were allegedly concluded with inter alia the present applicants. The entrapment process was apparently authorised in terms of section 252A of the Criminal Procedure Act by advocate (Abraham Johannes) Botha, the acting Director for Public Prosecutions (DPP) for the Northern Cape. The admissibility of evidence obtained during the entrapment was a bone of contention, resulting in a trial-within-a-trial,” Daffue stated.
He added that during the “trap” (Jephta) was introduced to some of the applicants by Colin Erasmus and that Jephta’s “handler” was Warrant Officer Louis Potgieter (the case’s initial investigating officer), also known as “the boss”.
“The State attempted to show that the alleged illicit dealing in diamonds and further action by the applicants resorted within the ambit of the Prevention of Organised Crime Act (POCA). In order to do so, it came up with a novel, outrageous argument – bordering on fiction – that an enterprise had been established by Jephta, Botha and Erasmus (the Section 204 witness), as the members of the criminal association so formed. This was alleged in an attempt to bring the alleged illicit dealing in diamonds by the individual applicants within the purview of the POCA,” Daffue said.
He added that while he “raised his eyebrows in disbelief” when he read this summary of substantial facts, he was not addressed on the issue and would not say “much more” save for some final remarks.
Daffue remarked that the high-handed and robust approach of the SAPS during the arrest of the accused (mostly between August 22 and 25 2014) and thereafter, as explained by all applicants in their affidavits, which has not been contested, was “sickening”, adding that “exorbitantly high” amounts of bail were set at the request of the State.
“Bearing in mind the planned operation, one would have expected the State to have its ducks in a row and ready to proceed with the trial without delay but alas, the first witness in the criminal trial only testified two years later, on August 10 2016. However, I do not intend to put all the blame on the State for the delay as it is clear that some delay could be ascribed to systematic delay and even legal representatives of the accused,” Daffue stated.
He added that the main Sate witness, Jephta, did not testify.
“While it is not for the accused or a court to prescribe to the State the order in which it should call its witnesses, it is clear as daylight that Jephta is an unwilling witness. Jephta would have testified on July 31 2018, 18 months since the start of the trial-within-a-trial. However, this did not materialise due to the disclosure of vital information to the defence by the State at a late stage and the subsequent application for recusal,” Daffue noted.
He returned to the events leading up to Pakati’s recusal by stating that on August 16 2016, the presiding judge (Pakati) wrote an e-mail to the Assistant Director: Security in the Office of the Chief Justice, (referred to as the “homeboy incident”) stating the following: “On Sunday, August 14 2016, I was at home when 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 give 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 from them to do for me so that I do away with it. He further told me that he told this 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. 
“He indicated that he would return on Tuesday, which is today. Captain Gugu then told me that he is concerned of what would happen to me after he tells the said 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 life are at risk. I think Captain Gugu is unsafe too.”
Daffue noted that Pakati did not disclose the contents of the conversation with Gugu and her e-mail to the Office of the Chief Justice to the legal representatives of the accused and that the Office of the Chief Justice instructed the DPP in Kimberley to ensure that a docket be opened and an investigation be undertaken.
“Affidavits were obtained by Gugu as early as August 15 2016 and from Khaya on August 23 2016. However, it took the SAPS and the DPP’s office nearly two years to finalise the matter and for the DPP to conclude that no prosecution was warranted, with a nolle prosequi certificate issued in May 2018. 
“The office of the DPP in Kimberley was also fully aware of the fact that the star witness and trap in the case (Jephta) made four statements (three of them between June and August 2016) wherein he indicated that there were attempts from third parties to bribe him as well and thereby ensuring that he does not testify on behalf of the State,” Daffue said, adding that Jephta’s last statement was made on March 6 2018 and around the same time when the last statement in the docket pertaining to Pakati’s complaint was obtained.
“The DPP in Kimberley was well aware of the situation and even instituted investigations. I personally believe that (Pakati) should have informed the parties immediately in order to obtain assurances that none of the applicants were responsible for the alleged threat and/or attempt to bribe. 
“It is further my view that the prosecution team was under an ethical duty to take their colleagues for the defence in their confidence and inform them of the alleged threats and attempt to bribe the trial judge and a crucial State witness. If the matter was openly discussed there and then (during August 2016), the trial would in all probabilities not have become a nullity in August, 2018, two years down the line, after numerous witnesses testified. (State prosecutor) Johan Roothman conceded that the so-called ‘homeboy’ incident ‘could never have been an irrelevant fact’. Yet, the State only disclosed it after two years.” 
Daffue added that Roothman submitted that he was not bringing the application for recusal and the State was placed in an “invidious position” that it could not take the decision (for recusal) on appeal as it did not oppose the application but “actually provided ammunition to the accused to launch their application”.
Shifting his attention to the four “Jephta statements”, Daffue indicated that a member of the defence council informed (Pakati) that the accused were given the four statements by Jephta.
“These statements were handed to the accused’s legal representatives on the morning of the recusal application. It is clear from the contents of the first statement that Jephta was offered money to make a statement that he ‘was forced by his handler to make false statements’ and that this statement would be provided to a journalist of the DFA,” Daffue said.
He added that the Project Darling IO, Potgieter, was the commissioner of oaths in respect of two of the statements by Jephta.
“Clearly, the prosecution team should have been fully aware of the allegations pertaining to bribery as far back as June 2016 but kept this information to themselves.”
With regard to monetary reward payable to witnesses, Daffue said that Roothman relied on the Finance and Financial Adjustments Acts Consolidation Act when he (Roothman) submitted that the State was “fully entitled” to agree to pay the agent/trap (Jephta) millions of rand.
“(Roothman) argued that, based on the value of the diamonds of approximately R28 million (involved in the alleged transactions), an amount of R5 million was not an excessive reward if one considered the amounts already paid by applicants to their legal representatives,” Daffue said. 
He added, after quoting from the act, that “the monetary reward and the additional amount referred to shall not exceed R100”.
“The wording of the section is clear and unambiguous. Roothman failed to appreciate this when he quoted the section to me. Furthermore, every payment under (the act) shall be made by the Secretary for Inland Revenue (now known as SARS), by way of a refund from the revenue in question. In this case, it did not happen. 

Roothman wanted this court to believe the section he so heavily relied upon is really a red herring and could never have been intended to allow the SAPS to pay millions of rand to traps.
“How much should a witness be paid to come to court and tell the truth? How will justice be served if an unsavoury and avaricious character is allowed to be paid vast amounts of money to testify for one party and later accepts huge sums of money from the opposition not to testify?” Daffue asked.
He added that the concept of “buying” witnesses was “reprehensible” although it was apparently accepted practice in the SAPS.
Daffue said further that a “worrisome issue”, brushed aside by the State in its answering affidavits, included the fact that the State included a charge of racketeering on the basis of a criminal enterprise and as indicated “supra” with the members thereof, as alleged by the State, including its star witness (Jephta) the former IO (Potgieter) and Erasmus, against the accused.
“Clearly, the State tried to blow up the case to something more serious than illicit diamond dealing. (Lieutenant-Colonel John Walters) Serfontein conceded in his testimony that a forensic analysis of the cellphone records did not substantiate these allegations. Furthermore, two of the three persons forming the criminal association (enterprise), as the State wants everyone to believe, had access to 11 unregistered, unmonitored and unrecorded cellphones during the entrapment process. This is incomprehensible and would be an exercise in futility to remedy such a flaw.” 
Daffue said that the “most damning aspect” in respect of the State’s case was the “character and attitude” of its “star witness”, Jephta, who was yet to testify.
“On his own version, he (Jephta) personally contacted at least one of the accused and allowed people to negotiate with him not to testify for the State and even to splash his ‘story’ of being forced by his handler to make false statements in a local newspaper. A State witness with integrity would not even agree to meet with accused persons or people having connections with the accused, allowing them to make offers to him. His credibility is in tatters – even junior council will be able to tear him to pieces within a few minutes. It would be the end of the State’s case. 
“The question to be asked is simply this: Why must the applicants go through another trial to see whether Jephta eventually turns up, whilst the State elected to call all formal and other not so important witnesses during the previous trial, keeping the trap away from the witness stand,” Daffue said.
“Not only did Jephta receive R1 million for his involvement in entrapment but he demanded a further R4 million to testify. This might have been inadmissible hearsay, based on a possibly incorrect version of him to a newspaper reporter in the DFA newspaper as early as April 7 2016, (before the start of the trial) but credence can be placed on the essence of the report – that Jephta wants more money to testify. Botha testified that Jephta approached him for more money. Both him and Lieutenant-Colonel De Witt Botha confirmed under oath that an amount of R1 million had already been paid to the agent, it being an exception in that the claim was submitted before the conclusion of the case. The State did not file an affidavit by Jephta to refute the allegations made to the journalist and to confirm his willingness to testify. I have been informed that Colonel Botha conceded in his testimony that Jephta demanded further payment to the amount of R4.2 million. Roothman did not object to this information and it must be accepted to be a true reflection of the evidence,” Daffue stated.
Coming to the end of his judgment, Daffue said that the applicants “should not be subjected to a further trial”.
“Not only may the State try to rectify mistakes made but, as indicated during argument, the applicants will have even more ammunition to further cross-examine witnesses who have already testified, bearing in mind what others have testified about later. There can be no fairness in allowing the State a proverbial second bite at the cherry. There are no suitable, less drastic measures available to the applicants. They have suffered tremendous hardship.”
Daffue stated that he was of the view that it was necessary for the court to protect the integrity of its own processes and to take the required steps to avoid injustices such as unjustified delays caused by systematic failures and conduct of legal representatives and even presiding officers.
“I considered the societal demand that an accused should stand his trial, particularly in the event of serious crimes as in this case, but I weighed that with the prejudice already suffered and to be suffered, both trial related and not trial related, if a de novo trial is allowed to proceed. 
“I also considered the State’s in limine submission that the application is premature in that there is no pending case as the de novo trial has not started yet. This a red herring. The indictment still stands and the State has made it clear that it wants to start de novo. All applications are still on bail and no charges have been withdrawn. There is no reason for the applicants to wait any longer. Consequently, I have come to the conclusion, may I say with some reluctance, that the applicants should not be subjected to further prosecution,” Daffue said, before ordering that “the prosecution against all thirteen applicants instituted by the DPP, Northern Cape, containing 139 counts, encompassing all relevant dockets pertaining to the case is permanently stayed”.