‘Still digging’: Diamond prosecution made its own hole bigger, says judge
Prosecutors criticised for chopping and changing their approach and breaching 'ethical duty'
After he censured the prosecution in one of the biggest illicit diamond-dealing trials in SA’s history, a judge said its application for leave to appeal became “a comedy of errors”.
Judge Johann Daffue, who was brought in after the original judge recused herself, said the director of public prosecutions in the Northern Cape had again proved to be his own worst enemy.
In September, Daffue awarded 13 defendants a permanent stay of prosecution in the high court in Kimberley, four years after they were arrested in a sting operation and two years after their trial began.
The 13 faced charges involving alleged illicit diamond sales totalling R28m. They were accused of racketeering and money-laundering‚ and were also charged under the Diamond Act and the Prevention of Organised Crime Act.
Their trial was halted when Judge Bulelwa Pakati recused herself in August‚ and Daffue was brought in from Bloemfontein to hear the defendants’ application for a stay of prosecution.
Pakati recused herself after defence lawyers learnt she had received threats two years earlier from someone who had also offered her a bribe.
She wrote to the office of the chief justice: “I felt scared that my life and my children’s lives were at risk.” However‚ defence lawyers were not informed.
Daffue criticised the prosecution for breaching its “ethical duty” to inform the defence of the threats to Pakati.
He said the accused – Ashley Brooks‚ Patrick Mason‚ Manojkumar Detroja‚ Komilan Packirisamy‚ Ahmed Khorani‚ Antonella Florio-Poone‚ McDonald Visser‚ Willem Weenink‚ Sarel van Graaf‚ Carl van Graaf‚ Kevin Urry‚ Trevor Pikwane and Frank Perridge – had spent millions in legal fees and lost their businesses as a result of the ill-fated prosecution.
“[They] have suffered tremendous hardship. Some of them had to sell their properties to survive‚” he said‚ accepting that his decision meant people who “might have been convicted of serious crimes will get off scot-free”.
Delivering judgment in the leave-to-appeal application, Daffue said the DPP had chopped and changed its approach so often that “in essence, there is no application before the court”.
He added: “I was and still am of the view that the actions of the DPP and the state advocates deserve to be censured.
“They knew for two years that there were attempts to threaten and/or bribe the trial judge … but kept that secret. Two years later they out of the blue spilled the beans.
“[State advocate Johan) Roothman could not explain why this was deemed necessary in 2018 only and not in 2016. It was a feeble and unacceptable excuse to rely on ‘the interests of justice and transparency’ at that stage of the proceedings.”