Police and prosecution bungling sees alleged diamond dealers go free
Thirteen defendants in one of the biggest illicit diamond-dealing trials in South Africa’s history have walked free after a comedy of errors by the state.
A judge in the high court in Kimberley this week granted their application for a permanent stay of prosecution‚ four years after they were arrested in a sting operation and two years after their trial began.
Judge Johann Daffue delivered stinging criticism of the Hawks and the prosecution‚ saying their shortcomings meant a retrial would have no chance of success.
The 13 defendants faced charges involving alleged illicit diamond sales totalling R28-million. They were accused of racketeering and money-laundering‚ and were also charged under the Diamond Act and Prevention of Organised Crime Act.
Their trial was halted when Judge Bulelwa Pakati recused herself on August 13‚ and Daffue — brought in from Bloemfontein to hear the application for a stay of prosecution — said: “There can be no fairness in allowing the State a second proverbial bite at the cherry.”
He was severely critical of the fact that Linton Jephta‚ a convicted criminal who was at the centre of the sting operation that sparked the trial‚ had been paid R1-million by the State and had demanded another R4.2-million to give evidence in court.
“How much should a witness be paid to come to court and tell the truth?” he said.
“How will justice be served if an unsavoury and avaricious character is allowed to be paid vast amounts of money by one party? Where will we end up if ‘hire a witness’ is resorted to by parties and especially the state?”
Although entrapment was widely acknowledged as a means of tackling crime‚ said Daffue‚ it did “not mean a court may close its eyes to irregularities”.
He added: “The Constitutional Court has to the best of my knowledge not yet considered the use of traps‚ but I have little doubt that [it] will not sanction the payment of traps to the extent as has taken place here‚ especially prior to the testimony of the trap or the finalisation of the trial.”
The judge did not spare Jephta‚ whose credibility was “in tatters”‚ he said.
“He personally contacted at least one of the accused and allowed people to negotiate with him not to testify for the state. An amount of R500‚000 was mentioned.
“A state witness with integrity would not even agree to meet with accused persons or people having connections with the accused. Yet he even came to Bloemfontein to consider offers made to him in this regard. Even junior counsel will be able to tear him to pieces within a few minutes. It would be the end of the state’s case.”
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 saying‚ “I felt scared that my life and my children’s lives were at risk.”
However‚ she did not inform the defence lawyers.
Daffue said: “She should have informed [them] immediately in order to obtain assurances that none of [them] were responsible for the alleged threat and/or attempt to bribe.”
The judge also lashed the prosecution for breaching its “ethical duty” to inform the defence of the threats to Pakati and attempts to bribe Jephta.
In a statement to police in June 2016‚ said Daffue‚ Jephta had admitted to being “offered money to make a statement that he was forced by [his handler] to make false statements”.
The judge said he was “sickened” by the “high-handed and robust” approach of the police during the arrest of the 13 accused in August 2014.
And he said it was “incomprehensible” that Jephta and the policemen involved in the sting had used 11 “unregistered‚ unmonitored and unrecorded” cellphones.
“It would be an exercise in futility to remedy such a flaw [in the investigation]‚” he said.
Daffue 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 that people who “might have been convicted of serious crimes will get off scot-free”.
In a May 2017 the Supreme Court of Appeal judgment‚ involving Brooks and his wife‚ Charlene‚ succeeded in overturning the forfeiture of their Kimberley home to the State on the basis that it was used in the commission of an offence‚ namely illegal diamond buying.
The judgment said Brooks held a prospecting right for diamonds on a Northern Cape farm‚ and used part of the house as an office.
Between 2011 and 2014‚ the Hawks’ so-called Operation Darling took aim at criminal syndicates and gangs dealing illegally in unpolished diamonds‚ said the SCA judges.
“Between March 2013 and February 2014‚ the police‚ with the aid of Colin Erasmus and an undercover agent [Jephta]‚ sold unpolished diamonds in some 19 transactions to various individuals in the Northern Cape.
“Erasmus‚ who used to work for De Beers as a diamond sorter‚ is a convicted diamond smuggler who operated in Johannesburg‚ Cape Town and the Northern Cape. Brooks is his nephew.”
According to the document‚ Erasmus told Brooks that Jephta had diamonds for sale. “This is how the illicit diamond dealing was uncovered. Brooks arranged each transaction between the dealer and the agent.
“Warrant Officer Potgieter of [the Hawks]‚ who was the handler‚ tested and weighed the diamonds‚ which had serial numbers‚ in the presence of [Jephta]‚ and instructed him to sell them to the dealer within a specific price range.
“[Jephta] was given a diamond scale and audio and video equipment was concealed on his person to record the transaction. He met Brooks and the dealer at the property‚ where the diamonds were examined‚ the purchase price paid in cash and the diamonds handed over.
“[Jephta] handed over the cash paid by the dealer to Potgieter together with the audio and video equipment. The cash was deposited into a bank account under the control of the police‚ and the audio and video recordings were safely stored.”