Illicit diamond dealing case of Kimberley businesspeople can go ahead

The Supreme Court of Appeal this month set aside the permanent stay of prosecution the Northern Cape High Court had ordered against the 13 accused.

Two years after the charges against them were dropped, a new trial looks to be on the cards for more than a dozen alleged illicit diamond dealers.

This after the Supreme Court of Appeal (SCA) this month set aside the permanent stay of prosecution the Northern Cape High Court had ordered against 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 Hawks swooped on the accused in late 2014 following a covert, year-long operation code-named Project Darling. But the trial suffered delays and when in 2018 the then presiding judge recused herself after having received what she considered a death threat, the defence applied for a permanent stay of prosecution.

Judge Johann Daffue, who granted the application on the basis that the trial had been delayed unreasonably, was at the time scathing of the state.

ALSO READ: High-profile illicit diamond dealing case could be revived

He described parts of its case as “a novel, outrageous argument – bordering on fiction”.

He also labelled the police’s approach “high-handed and robust” as well as “sickening” and criticised the “exorbitantly high” bails that were set.

But in the SCA, Judge Jannie Eksteen said these remarks were “unfortunate” and created “the regrettable perception of an unjustified bias”.

“The judge a quo had not heard argument on the matter neither had he heard the evidence … The criticism of the charges, instituted on the authority of a certificate issued by the [National Director of Public Prosecutions], was premature,” Eksteen said.

He also said the remarks did not do justice “to the facts of the case”.

“All the respondents had been granted bail on their first appearance in August 2014. Some of the respondents had been unable to pay the initial amount fixed and the amounts had been decreased to allow them not to be detained,” he said. “The matter was complex, as I have said, and substantial evidence was involved.”

Eksteen found the state could not be blamed for all the delays at trial and described the charges against the accused – which included racketeering, corruption and illegal dealing in uncut diamonds – as “serious offences”.

“Racketeering may attract a sentence of life imprisonment and corruption, which is disturbingly prevalent in South Africa, [and] undermines the moral fibre of our society,” he said.

Eksteen said his was to make a value judgment on the reasonableness of the delay and that “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”.

Eksteen said the case was not “so extraordinary” that a stay of prosecution was 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,” he said. “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.”

The National Prosecuting Authority was unavailable for comment on Monday.

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