Further hiccups have led to a lengthy delay in the rape case against former Dundee High School teacher Werner Botha, which is now set down for trial in the Dundee Regional Court six months from now, on February 8, 2027.

It’s been four years since Botha made his first appearance in the Dundee Regional Court in October 2022.

Durban-based magistrate Garth Davis is now appointed to preside over the trial, following the formal recusal of Dundee Regional Court magistrate Anton Ferreira on July 22.

Ferreira cited ‘personal issues’ between himself and Botha’s senior counsel, Advocate Paul Jorgensen, as the reason he wished to recuse himself from the case, adding that he wanted to prevent any further delays in the matter.

It appears that Davis has been instructed by the regional judge president to take over those cases that were previously presided over by Ferreira, in which Jorgensen is acting as the senior defence counsel.

Defence argues prosecution failed to disclose key evidence

Shortly after Davis took the bench, Jorgensen made an application to have the case struck off the roll, asking that an order be made that the case can only be reinstated on instruction by the Department of Public Prosecutions.

Jorgensen claimed that Botha was deprived of his right to adequately prepare for the trial due to ‘negligence on the part of the prosecution’.

According to Jorgensen, the state prosecutor, Sabelo Mncadi, failed to comply with a court order issued by Ferreira on August 5, 2025, instructing him to provide the defence with a transcript of the disciplinary hearing held by the Department of Education in which Botha was found guilty and dismissed.

The defence further requested that the state obtain from the Education Labour Relations Council (ELRC) the sworn testimony of the complainant, video recordings of the disciplinary proceedings, copies of all file notes of the proceedings, as well as copies of any evidence that may have been tendered at the hearing.

Mncadi was given until October 15, 2025, to provide this to the defence.

Jorgensen submitted evidence that Botha’s instructing attorney, Anwar Jessop, corresponded with Mncadi via email on August 5, 2025, and again on August 6, 2025, on August 12, 2025, on October 15, 2025, as well as on November 28, 2025, seeking an urgent response with regards to the documents the state was ordered to obtain. However, no response was forthcoming.

Jorgensen further submitted a screen-shot of a WhatsApp chat between Jessop and Mncadi, in which Jessop states, “We haven’t received any email from you”, on October 20,2025.

To which Mncadi responded on October 28, 2025, saying, “Morning, we’ve got a network and computer software crisis. I’ll get back to you about a possible solution to get things through to your office.”

“Nothing else happens. No emails were provided. No documents were received,” stated Jorgensen. “Until the morning that the matter was set down for trial (on July 13, 2026).”

According to Jessop, on that morning, Mncadi provided Jessop with an email that is dated October 14, 2025, that was sent from the investigating officer to Mncadi, which contained a link to the audio recording of Botha’s disciplinary hearing.

The email advises that the ELRC does not do transcriptions and urges Mncadi to download the recording before the link expires.

“This document that came through to the state on October 15, 2025, is never given to us until the morning of the trial (July 13, 2026),” complained Jorgensen, “Needless to say, the order was that they provide us with the documentation, not a link to go and get the documentation.”

Mncadi’s response to Davis was, “We simply don’t have what the defence is asking for. We haven’t received it after making a request to the Department of Education for the transcripts. We cannot make available that which we ourselves do not have.”

Mncadi conceded not meeting the time-frames set by Ferreira to comply with the court order to obtain and provide the transcripts to the defence.

“But the fact still remains that we made available what was provided to us, to the defence,” he said, referring to the link to the audio recording.

Magistrate orders strict deadlines before February 2027 trial

Mncadi further pointed out that the defence was responsible for a number of delays from the start of the trial.

“The accused made his first appearance in October 2022. We are now in a situation where we have to start the trial over after the accused has pleaded. What has occasioned this delay?” asked Mncadi. “Every single delay has been occasioned by the defence. We’ve been ready to proceed with the trial.”

He explained that, “Initially, Advocate Barnard was instructed to appear on behalf of Botha on instruction of Shabangu & Associates, but Barnard failed to appear.

He was engaged, we were told, in another matter. We were then told that Adv Barnard will not be proceeding with the trial. Instead, they intended to instruct Adv Van Schalkwyk and that was done.

“The matter was then set down for trial with Van Schalkwyk as new counsel. The matter did not proceed.

Van Schalkwyk did not appear the first time the matter was set down for trial. Another postponement was sought by the defence, which was granted by the court.

The matter was then postponed once again for Van Schalkwyk.

Van Schalkwyk appeared on the second occasion and we started the trial. Botha was asked to plead and he pleaded ‘not guilty’.

“We were in the process of hearing the evidence of the complainant when we had technical issues with the devices used in the interview room. The matter could not proceed.”

“The defence then requested a postponement to visit the scene, asking that we don’t proceed with the trial until they had visited the scene where the alleged incident was said to have taken place.

“They were granted that there would be an opportunity.

“On the day we were meant to start hearing the evidence of the complainant, Van Schalkwyk then cited a conflict between himself and the accused, and for that reason advised the court that he cannot carry on as counsel for the accused. It was at that point that Van Schalkwyk then removed himself from the matter and Jessop then took over. Jessop’s office then instructed Adv Jorgensen.

“When we were meant to proceed with the trial, it was at that point that they made an application for the transcription of the record of the disciplinary hearing for Mr Botha to be provided to them. It is that same transcription that we are not in possession of.”

Mncadi pleaded with Davis to grant a final postponement, undertaking to follow up personally with the Department of Education with regards to obtaining the transcripts, instead of relying on the investigating officer as a ‘go-between’, as he had in the past.

In handing down his judgment on the application, Davis pointed out that the correspondence between Jessop and Mncadi was ‘one way correspondence, with some replies, which amount to non replies’.

“The reality is that the prosecutor concerned was in possession of the recording the defence wished to be transcribed 11 months ago. The matter was set down for trial on July 13, though it did not proceed for other reasons. The reality is that it could not have proceeded because this was not available. I cannot pretend that I can understand why a prosecutor would sit on that for as long as he did.”

However, Davis took into account the seriousness of the charge, as well as the fact that the complainant has not been responsible for a single delay, nor can she be blamed for any delays.

“In my view, bearing in mind the delays and the very serious nature of the charges, I am of the belief that this matter should be postponed for trial but subject strictly to orders that will ensure swift compliance,” concluded Davis.

“If there is not compliance, I will ensure that a virtual hearing is held in respect to any application that is brought.”

Davis ordered that the audio link to Botha’s disciplinary hearing be made available to the defence within seven days; and 14 days from receiving the link, the defence must notify the prosecutor that they have been able to retrieve the link and that they are able to transcribe it.

Any other information that may be outstanding must be furnished by September 30.

The trial is set down to proceed from February 8 to February 11, 2027, and has been marked final and preferrant.

---