THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case no: 505/19
In the matter between:

DIRECTOR OF PUBLIC PROSECUTIONS,
NORTHERN CAPE
APPELLANT
and
ASHLEY MARK BROOKS                                      FIRST RESPONDENT
PATRICK JOHN MASON                                   SECOND RESPONDENT
MANOJKUMAR DAYABHAI DETROJA           THIRD RESPONDENT
KOMALIN PACKIRISAMY                              FOURTH RESPONDENT
AHMED ISHABHAI KHORANI                             FIFTH RESPONDENT
ANTONELLA NATASCIA FLORIO-POONE     SIXTH RESPONDENT
KENYADITSWE MCDONALD VISSER       SEVENTH RESPONDENT
WILLEM JANK WEENINK                                EIGHTH RESPONDENT
JOSEPH SAREL VAN GRAAF                              NINTH RESPONDENT
CARL STEVE VAN GRAAF                                TENTH RESPONDENT
KEVIN TREVOR URRY                                      ELEVENTH RESPONDENT
TREVOR PIKWANE                                          TWELFTH RESPONDENT
FRANK SAMUEL PERRIDGE                   THIRTEENTH RESPONDENT

Neutral citation: Director of Public Prosecutions, Northern Cape v Brooks
and Others (Case no 505/19) [2020] ZASCA 80 (2 July
2020)
Coram:
PETSE DP, MOCUMIE AND MOLEMELA JJA AND
LEDWABA AND EKSTEEN AJJA
Heard: This appeal was disposed of without an oral hearing in terms of
s 19(a) of the Superior Courts Act 10 of 2013.
Delivered: This judgment was handed down electronically by circulation to the parties'
representatives by email, publication on the Supreme Court of Appeal
website and release to SAFLII. The date and time for hand-down is deemed
to be 10h00 on 2 July 2020.
Summary: Permanent stay of prosecution – recusal by trial judge before
finalisation of trial – discretion of Director of Public Prosecutions in respect
of proceedings de novo – application for stay of prosecution triggered by delay
caused by recusal – reasonableness of delay – no trial prejudice established.

_____________________________________________________________
ORDER
_____________________________________________________________
On appeal from:  Northern Cape Division of the High Court, Kimberley
(Daffue J sitting as court of first instance):
The appeal is upheld.
The order of the high court is set aside and replaced with the following:

‘The application is dismissed.’

_____________________________________________________________
JUDGMENT
_____________________________________________________________
Eksteen AJA (Petse DP concurring)

[1] The appeal, which proceeded with leave granted by this court, is against
an order by Daffue J in the High Court, Kimberley (the high court), that the
prosecution against the thirteen respondents (collectively referred to as ‘the
respondents’) instituted by the Director of Public Prosecutions (DPP) as set
out in the indictment dated 5 August 2016, containing 139 counts, be
permanently stayed. The parties agreed that the appeal be considered in terms
of s 19(a) of the Superior Courts Act 10 of 2013, without an oral hearing. The
question in the appeal is whether the order was correctly granted in accordance
with the applicable legal principles.

[2] The application (the stay application) followed the recusal of Pakati J
(the trial judge) at an advanced stage of the criminal proceedings. The

consequence of the recusal is that the proceedings before the trial judge had
been rendered a nullity. If the DPP chose to proceed with a prosecution it
would have had to start de novo. However, the respondents contended that
their constitutional right to a fair trial within a reasonable time, guaranteed in
s 35(3)(d) of the Constitution of 1996 (the Constitution), had been infringed
by irregularities giving rise to delay, and eventually the recusal of the trial
judge. The timeline of the events and the reasons for the various delays,
postponements and the eventual recusal of the trial judge are therefore central
to the determination of the appeal.

[3] The facts leading up to the application are as follows. The respondents
had all been engaged in one way or another with the diamond industry. During
February 2012 the Director for Priority Crimes Investigation Unit (DPCI) in
the Northern Cape had commenced a covert operation under the name
‘Project Darling’
(the
investigation)
to
investigate
allegations
of
contraventions of the Diamonds Act.1 The investigation proceeded in two
phases. In the first phase an agent had been used to purchase unpolished
diamonds from a number of identified targets. This phase of the operation had
been conducted over a period of approximately a year terminating in February
2013. In the second phase of the operation, which spanned a further
12 months, an agent had sold State owned diamonds to identified targets.
Where necessary, authorisation in terms of s 252A of the Criminal Procedure
Act, 51 of 1977 (the CPA) had been obtained from the DPP for the use of the
agents for entrapment. The operation was completed in February 2014.

1 Act 56 of 1986.

[4] On 22 August 2014 nine persons were arrested and charged. They had
appeared before the Magistrate’s Court, Kimberley (the magistrate’s court)
and bail was fixed. A further thirteen persons had been arrested on
25 August 2014 and on the same day they appeared, together with the original
nine arrestees (collectively referred to as the accused) in the magistrate’s court
where bail was fixed in respect of the new arrestees and the matter was
postponed to 13 October 2014. Two further persons had subsequently been
arrested and released bail.

[5] On 13 October 2014 the matter had been postponed to 28 January 2015
for further investigation. In consequence of the further investigation charges
were withdrawn against one accused. The prosecution had indicated its
intention to charge some of the accused, including the respondents, with
racketeering and accordingly sought and obtained an order that their trial be
separated from the remaining accused. In order to proceed with a charge of
racketeering a certificate had to be obtained from the National Director of
Public Prosecutions (NDPP) in terms of s 2(4)2 of the Prevention of Organised
Crime Act 121 of 1998 (POCA). It further transpired that certain of the alleged
offences had been committed in Gauteng and others in the Northern Cape.
The prosecutor recorded that he was awaiting input from the accused in
respect of the intended centralisation of these charges, which the NDPP would
have had to consider before issuing a s 2(4) certificate. He accordingly sought
a further postponement of the trial.

2 Section 2(1) of POCA defines the crime of racketeering and s 2(4) provides: ‘A person shall only be charged
with committing an offence contemplated in subsection (1) if a prosecution is authorised in writing by the
National Director.’

[6] The defence had, however, objected to the postponement and urged the
magistrate to invoke the provisions of s 342A(3)(c)3 of the CPA, which was
opposed by the State. The application had been refused and the matter
postponed to 15 May 2015. The State was put to terms to obtain the necessary
certificate in terms of s 2(4) of POCA before the next appearance. This, it had
duly done.

[7] An agreement was reached on 28 January 2015 with the legal
representatives of all the accused that the trial would be set down for 19-30
October 2015 and 9-20 November 2015. The dates had been agreed to suit the
various legal representatives and, as the envisaged trial was complex,
sufficient time had been required for preparation. I have alluded earlier to the
duration of the investigation. The transactions involved in the charges
amounted to approximately R28 million and the consolidated docket prepared
in this matter encompassed 3 308 pages.4 Notwithstanding the agreement in
respect of the trial dates the matter had been postponed, provisionally, to
15 May 2015 in the magistrate’s court.

[8] In the interim, during February 2015, a number of the accused had
submitted representations to the office of the NDPP objecting to the
centralisation of charges and claiming a misjoinder in the indictment.
However, the NDPP had been satisfied, on a review of the dockets, that the

3 Section 342(3)(c) of the CPA provides: ‘If the court finds that the completion of the proceedings is being
delayed unreasonably, the court may issue any such order as it deems fit in order to eliminate the delay and
prejudice arising from it or to prevent further delay or prejudice, including an order –
. . .
(c) where the accused has not yet pleaded to the charge, that the case be struck off the roll and the prosecution
not be resumed or instituted de novo without the written instruction of the Attorney-General.’
4 A number of separate dockets had been opened during the investigation. When the separation of trials was
effected a consolidated docket was prepared in respect of the accused who would be charged of racketeering.

issue of a certificate in terms of s 2(4) of POCA authorising the prosecution
on charges of racketeering and the centralisation of the charges was
appropriate. The certificate had been handed in at the appearance on
15 May 2015 and the prosecution requested that the matter be postponed to
27 July in order to be transferred to the high court for trial on the agreed dates.

[9] The indictment had been provided to the accused on 15 June 2015 and
the prosecution advised on 30 June 2015 that an electronic copy of the docket
was ready (a copy thereof had been provided to the accused between
30 June 2015 and 9 July 2015). When the matter was transferred to the
high court on 27 July 2015 there were 20 accused and they were instructed to
appear on 8 September 2015 for pre-trial procedures. At that stage Mr L Hodes
SC had then recently been briefed on behalf of certain of the respondents. The
previously agreed dates were not suitable to him. The parties had agreed to
approach the Judge President to arrange new dates.

[10] At the pre-trial procedure the accused had indicated that they would not
be in a position to proceed to trial as they contended that they had not been
furnished with full disclosure of the docket. In particular, they had contended
that transcripts of audio and video images, copies of the original s 252A
applications, the Part B and C sections of the docket and some of the
statements contained in the docket had not been provided to them. The
prosecution denied their entitlement to further disclosure. The parties agreed
in the circumstances that any preliminary and in limine applications which
any of the accused may have wished to bring would be heard in the week of
19-23 October 2015, being the first week of the previously agreed trial period.
In order to accommodate Mr L Hodes the Judge President in Kimberley,

directed that the trial would proceed on the running roll from 18 April 2016
to 23 September 2016.

[11] On 19 October 2015 counsel on behalf of the various accused had
brought applications for:
(i)
the quashing of the charges and relief as envisaged in s 342A(3)(c);
(ii)
the disclosure of documentation which formed part of the s 252A

applications5 as well as Parts B and C of the case docket;
(iii)
the disclosure of further statements allegedly contained in the dockets;
and
(iv)
further particulars.
All of these were opposed. Argument was not completed by 23 October 2015
and the matter was postponed to 4 and 5 February 2016. Again it was not
completed and the applications were further postponed to 20 April 2016 when
argument was finalised. In the course of argument Mr Roothman, on behalf
of the State, had contended that the State had disclosed all witness statements.6
In respect of the further documentation sought by the accused, Mr Roothman
had argued that some were protected from disclosure by the Police Act and
others were privileged and that counsel for the accused were accordingly not
entitled to them. Mr Roothman had asserted that he had provided more than
what he was required to do.

[12] On 16 May 2016 the trial judge had ruled on the applications and
ordered the DPP to provide further particulars on certain limited points and to

5 In particular, the respondents sought information relating to all the informers utilised in the investigation,
including those alluded to in the authorisation.
6 There is no evidence to suggest that he, or the DPP, was in possession of any further witness statements at
the time which had not been disclosed.

update the summary of substantial facts. The remainder of the applications
had been dismissed. In consequence of these applications the agreed trial date
had come and gone. Two of the respondents had indicated their intention to
bring further applications to compel further particulars and the trial dates were
rearranged for 27 July-12 August 2016, with certain days excluded.

[13] Another application for further particulars was heard on 17 June 2016.
It had been prompted by a newspaper article which had appeared on
7 April 2016 stating that Mr Linton Jephta (Jephta), a crucial State witness
and one of the agents who had been used in the entrapment during the
investigation, would refuse to testify unless the Hawks paid him R4 million
before the trial commenced. The article recorded that he had already received
an amount of R1 million7 and that a spokesperson on behalf of the Hawks had
indicated that Jephta would only receive the further R4 million after he had
testified and the case had been finalised. The documentation upon which the
article relied had apparently been sourced from Mr Korff (Korff).

[14] This application too, had been opposed. The papers do not reveal the
particularity which the accused had sought to compel, but it is evident that the
documentation provided by Korff was central to the argument. Roothman had
protested that the trial court ought not to rely on newspaper articles and he had
asserted that documentation provided by Korff was fraudulent. He had
contended that Korff would not testify on behalf of the State and that the
documents provided by him were privileged and covered by a non-disclosure
agreement. Thus, he had argued that the documents were inadmissible

7 The evidence later established that the information relating to this payment was correct.

fraudulent documents. One of the assertions which Korff had made was that
Warrant Office Potgieter, the erstwhile investigating officer, had received
various payments into his personal bank account in relation to the matter.8 The
trial judge ruled that these documents could only be dealt with during the trial
and that it would have been premature to deal with them at that stage.

[15] At an undisclosed stage the parties were advised that the trial would
only commence on 1 August 2016. The circumstances giving rise to this
change do not appear from the papers. On 1 August 2016, however, the legal
representatives on behalf of seven of the accused had approached the
trial judge to request time as they intended to negotiate with the prosecution
in respect of a possible plea in terms of s 105A of the CPA. The matter had
accordingly stood down. On 2 August 2016 they had reached an agreement
with the State and charges had accordingly been withdrawn against those
seven accused. Their trial proceeded in another court. The papers do not reveal
what the agreement entailed or what offences these accused had pleaded guilty
to. The respondents were then the remaining accused in the trial.

[16] These developments had caused the respondents to seek the recusal of
the trial judge (the first recusal application) based on the fact that she had
learnt that charges had been withdrawn against certain accused who had
agreed to plead guilty to certain offences. This, they contended, created the
perception that they were also guilty. They further insisted that the indictment
had to be amended to remove any reference to the seven accused against
whom the charges had been withdrawn.

8 Potgieter had been removed as investigating officer from the case during May 2015 and been replaced by a
new investigating officer. He remained an essential witness for the State as he had been Jephta’s handler for
purposes of the entrapment.

[17] The first recusal application had been opposed and dismissed and the
State was ordered to amend the indictment as requested. The revised
indictment was dated and delivered on 5 August 2016. It is this document
which was referred to in the order of Daffue J.

[18] The trial had commenced on 10 August 2016 and on 11 August the
State called Mr Dreyer (Dreyer). During cross-examination of Dreyer both
Mr M M Hodes SC (for third and eighth respondents) and Mr L M Hodes SC
had wanted the witness to bring an audit report of the diamonds kept in the
custody of the State Diamond Evaluator. Neither the witness nor the
prosecuting authority had been in possession of such an audit and the matter
accordingly stood down for the witness to procure the document from his
office. The following day Dreyer brought the said audit for the year 2016,
presumably the most recent audit available. Mr M M Hodes, however,
indicated that he had wanted the report for 2013-2014, which neither the
witness nor the prosecuting authority had in their possession. Dreyer had
accordingly been requested to procure the document at the next hearing and
the matter was then postponed to 19 September 2016.

[19] On 19 September 2016 Dreyer had returned to the witness box and
handed the document to the court. Mr M M Hodes, inexplicably, had no
questions on the document. He indicated, instead, that he required the audit
report for 2010-2011. This request was later abandoned.

[20] On 21 September 2016 the State had indicated its intention to call
Mr Lochner, who had downloaded video and audio recordings from the
recording machine allegedly used by Jephta in the investigation. The defence

objected to the admissibility of the evidence and on 23 September 2016 the
trial court ordered that a trial-within-a-trial be held to determine the
admissibility of this evidence. The trial had then been postponed to
30 January 2017. The agreement with the Judge President, referred to earlier,
was that the trial could run until 23 September and the postponement at this
stage had therefore been inevitable.

[21] At the resumption on 30 January 2017 the State had been ready to
commence with the trial-within-a-trial. However, Mr T Price SC, on behalf of
some of the respondents sought a postponement in order to consult. The matter
had accordingly stood down to 31 January 2017. On 31 January Mr Price
brought a formal application for a postponement to 13 February 2017 as he
needed further consultations which he contended, ‘will bring the trial to an
end’. There were no objections.

[22] On 13 February 2017 Mr Price was still not ready and a further
postponement ensued to 15 February 2017. Still Mr Price was not in a position
to proceed and the matter stood down to 11h30 that morning. The trial-within-
a-trial then commenced and Korff was called on behalf of the respondents
represented by Mr Price. For reasons which were not disclosed Mr Roothman
had not been advised of the intention to call Korff until the morning of
15 February. Korff proceeded to testify until 17 February 2017, when he fell
ill and the matter had to be postponed to 28 February. On resumption, the
cross-examination of Korff commenced.

[23] During the course of Korff’s evidence a substantial volume of
documentation which the State had previously not been favoured with had

been handed in. Accordingly, on 8 March 2017 Mr Roothman requested a
postponement in order to study the numerous exhibits handed in by Korff. The
respondents objected. The trial court ruled, however, that by virtue of the
complexity of the matter and the numerous documents handed in by Korff in
the course of his evidence the interest of justice demanded that the State be
afforded an opportunity to study the documents and to consult with its
witnesses in respect thereof. The matter had accordingly been postponed to
27 March 2017 when Korff continued.

[24] In accordance with a ruling made by the trial judge in respect of the
procedure for the trial-within-a-trial the State then proceeded to call its
witnesses. An adjournment followed on 31 March 2017 to 8 May 2017. No
reason for the postponement is apparent from the papers nor was any blame
attributed to any party for the adjournment.

[25] On 8 May 2017 the matter recommenced and counsel on behalf of
certain of the respondents renewed argument in respect of the disclosure of
the s 252A application. On this occasion the trial judge had ordered that a
redacted version of the application be furnished deleting the names of any
informers where they appeared in the applications.9 The State complied and
the trial proceeded to Thursday 17 May 2017 when it was postponed to
6 November 2017, apparently as the State had not been ready to proceed with
its next witness on that day. No reason was advanced for the duration of the
postponement nor was any blame attributed to any of the parties. On

9 The information relating to the informers, which had been sought in the earlier application in October 2015
was specifically excluded.

9 November 2017 the trial had again been postponed, by agreement between
the parties, to 29 January 2018.

[26] When the trial court reconvened Warrant Office Potgieter (Potgieter),
the original investigating officer and the handler of the agent Jephta was called
only in respect of the trial-within-a-trial which, as I have said, related to the
admissibility of the audio and video recordings made. On 31 January 2018,
however, Potgieter fell ill. He sought medical attention and a medical
certificate verifying his indisposition was handed in. The medical opinion
expressed that he was unfit for service until 5 February 2019. The matter
accordingly stood down to enable the State to prepare another witness.

[27] Mr Botha (Botha), the Acting DPP in the Northern Cape, who had
authorised the applications for s 252A authorisation took to the witness stand
on 1 February 2018 and his testimony continued to 9 February 2018, when
the State requested a postponement for two weeks as Mr Roothman’s wife had
fallen ill and had been hospitalised. Notwithstanding the objections by the
respondents a postponement was granted and the matter recommenced on
19 February 2018.

[28] Potgieter returned to the witness box and Mr Roothman attempted to
lead his evidence on the content of the video material. To this an objection
was again raised and argument presented. The court ruled against the State
holding that the content of the video material could only be considered during
the evidence of Jephta, who still had to be called by the State. As Potgieter’s
evidence continued he again complained of illness and said he was suffering
severe headaches. Notwithstanding objections from the respondents the

matter was adjourned to the following day when medical opinion again
recommended that Potgieter was not fit to continue. Whilst Mr Roothman had
diligently prepared a standby witness this too had been to no avail as the
standby witness fell ill and a medical certificate in this regard was tendered.

[29] In these circumstances Mr Roothman was compelled yet again to seek
an indulgence. The respondents again protested and they applied for a ruling
that the delay in finalising the matter was unreasonable and that, in terms of
s 342A(3)(d) of the CPA, the proceedings should continue and be disposed of
as if the case for the prosecution had been closed.10 Their application in this
regard was unsuccessful as the trial court ruled that the delay had not been
foreseeable. The matter was accordingly postponed to 12 March 2018.

[30] At the resumption, Mr Roothman called Colonel Serfontein
(Serfontein) who had conducted cellphone data analyses. Counsel for the
respondents objected to his evidence on the basis that a statement prepared by
Serfontein had been presented to them at the eleventh hour. Mr Roothman
acknowledged this to be so. The statement, however, was not a statement
which had been contained in the docket and was an additional statement which
had subsequently been prepared.11 The matter accordingly stood down to the
following day when the trial proceeded to 16 March 2018, which had been the

10 Section 342A(3)(d) provides:
‘If the court finds that the completion of the proceedings is being delayed unreasonably, the court may issue
any such order as it deems fit in order to eliminate the delay and any prejudice arising from it or to prevent
further delay or prejudice, including an order –
. . .
(d) where the accused has pleaded to the charge and the State or the defence, as the case may be, is unable to
proceed with the case or refuses to do so, that the proceedings be continued and disposed of as if the case for
the prosecution or the defence, as the case may be, has been closed.’
11 The statement had been prepared in consequence of his consultation with Mr Roothman and it was not in
existence in February 2016 when Mr Roothman assured the court that he had disclosed all the witness
statements in his possession.

end of that session. Trial dates could not be arranged for the second term in
2018 as the trial judge was on long leave.

[31] The trial reconvened on 31 July 2018 and the prosecution had fully
consulted and was ready to present the evidence of Jephta when they were
informed that some of the respondents intended to bring an application for the
recusal (the second recusal application) of the trial judge. The second recusal
application had a history of its own. On 14 August 2016, shortly after the
commencement of the evidence, the trial judge had been approached by Mr
Gugu (Gugu), a Captain in the South African Police Service stationed at
Kimberley. Gugu who was described by the trial judge as ‘my home boy’ had
been well-known to her. He reported an approach by one Khaya, a diamond
dealer in Kimberley, who had advised that he was aware of the close
association between the trial judge and Gugu. Gugu said that Khaya had
requested him to speak to her to find out what she would want from the
respondents for their problem to go away. She rejected the offer whereupon
Gugu had told her that he was concerned for what could happen to her if he
were to inform Khaya that she did not want anything from them. He had
advised that Khaya was aware that she drives a black Jeep with a
GP registration number and Gugu suggested that she refrain from using the
vehicle for her own safety and that of her children.

[32] The trial judge had duly reported the matter to the Director of Security
at the Office of the Chief Justice. The Office of the Chief Justice in turn, had
requested the DPP on 16 August 2016 to request the police to investigate the
matter. An investigation docket had been opened and investigated and on

12 June 2018 the DPP had addressed a letter to the legal representatives of the
respondents. The letter recorded:
‘THE STATE VERSUS: KHAYALETU CHARLES TUBANE WITH REGARD TO THE
STATE VERSUS BROOKS AND OTHERS ENQUIRY NC DPCI CAS 04/08/2016
(DEFEATING THE ENDS OF JUSTICE/CORRUPTION)
1.
This office received information from the Assistant Director, Security, attached to
the Office of the Chief Justice, that there was an attempt to unduly influence or
bribe the Honourable Judge Pakati in relation to the Brooks matter and that her
safety might have been endangered.
2.
An Enquiry docket with reference number NC DPCI CAS 04/08/2016 was opened
and investigated by the Serious Corruption Investigations Unit, South African
Police Service.
3.
According to the information, the suspect in this matter was a person by the name
of Khayaletu Charles Tubane.
4.
After a protracted investigation, the Enquiry docket was finally submitted to this
office for a decision. The office declined to prosecute on 21 May 2018, based on
the available evidence.
5.
In the interests of justice and transparency you are accordingly informed.’

[33] The respondents had immediately requested a copy of the docket
relating to the matter which had been provided on 23 July 2018. On
31 July 2018 however, Mr Roothman provided four additional statements by
Jeptha which had not previously been provided and which appear to have been
the subject of a separate enquiry. These statements bear the dates
27 June 2016, 26 August 2016 and 6 March 2018, whilst one statement was
undated. In these statements Jeptha related how he had been approached by
and met with persons, including one Eddy Poone, previously a co-accused and
the husband of the sixth respondent, and offered substantial amounts of money

not to testify. Self-evidently these events may have impacted on the evidence
of Jephta and were relevant to his cross-examination.

[34] Furthermore, on 20 July 2018 the DPP had provided the respondents
with two compact discs (CDs) containing audio and video material of two
conversations which had allegedly taken place between Mr Ashley Brooks,
the first respondent (Brooks) and Jephta. These had not previously been
provided and Mr Barnard, for the DPP, has explained that they were not
previously in possession of the DPP. These CDs, he explained, had been
discovered on a laptop computer which had previously been used by Potgieter
while he had been the investigating officer.

[35] All of this had triggered the second recusal application. Pakati J
obliged. At the time of her recusal the trial-within-a-trial relating to the
admissibility of video and audio material of the entrapment had remained
incomplete. Potgieter’s evidence had been incomplete and Jephta, the agent,
was yet to testify. Not all the respondents supported the second recusal
application and some of them actively opposed it. The consequence of the
recusal by the trial judge, as I have said, is that all the proceedings before her
were nullified. The application for the stay of prosecution had followed just
two weeks after the recusal.

[36] In the stay application the parties provided separate timelines which
reflected certain factual disputes relating to the reasons for the various
postponements and delays. The stay application sought final relief by way of
application proceedings which, generally, could only have been granted if
those facts averred by the applicants (respondents in the appeal) in their

affidavits, which had been admitted by the respondent (appellant), together
with the facts alleged by the appellant, justified such an order.12 In narrating
the facts giving rise to the recusal of the trial judge I have adopted this
approach.

[37] In the stay application Brooks attested to a founding affidavit. All the
respondents have aligned themselves with the averments made in the affidavit
of Brooks. They relied on an alleged infringement upon their right to a fair
trial and the right to have their trial commence and conclude without
unreasonable delay. Brooks blamed the State, and particularly its legal
representatives, for the delays and launched an attack on the professionalism
and integrity of Mr Roothman and Botha. He alleged:
‘I have been advised . . . that it can never be said that the State has clean hands in the
prosecution. Over and above all the irregularities alluded to in the applications concerning
the provision of equipment and money by the Complainant and the payments made to the
Investigating Officer into his personal bank account, coupled with his failure to return to
continue his testimony and be cross-examined for an indefinite period, the withholding of
documents taints this prosecution and renders it unfair.’
The alleged ‘irregularities alluded to in the applications concerning the
provision of equipment and money by the complainant’ were not explained in
the stay application and to the extent that this may have referred to the
evidence of Korff, the trial judge had not ruled on these issues yet. Similarly,
Potgieter had not completed his evidence; his version of events and his
explanations of his alleged conduct had not been heard. These are matters
which must be considered in the trial.

12 See Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A); [1984] 2 All SA 366
(A).

[38] Brooks concluded: ‘The State’s conduct in this matter is inexplicable
and deserving of censure. It is unacceptable for Office(r)s of the Director of
Public Prosecutions to conduct themselves in this manner. They ought to
know better than to withhold crucial statements that are vital to the preparation
of a defence . . . .’

[39] Brooks reserved his most scathing criticism of the representatives of
the State for Botha. He alleged:
‘[80] One of the most significant aspects pertaining to the application for the Presiding
Judge’s recusal was that Adv Botha had received the complaint from the Presiding Judge
prior to him testifying under oath in this matter. He made no mention of this when he
testified and did not provide any of the documentation that he had been aware of since
August 2016.
[81] This information was crucial and would have in my respectful submission
influenced the Presiding Judge in relation to her acceptance or rejection of his testimony
and more importantly that of Linton Jeptha.
[82] Most significantly, Adv Botha expressly stated at page 3131 on 2 February 2018
under oath in open court as an officer of this Honourable Court, that he had no other
information or documentation relating to this matter. This was a blatant lie.’

[40] In respect of the delay Brooks alleged:
‘By virtue of the Presiding Judge having recused herself, the trial that had commenced on
5 August 2016 and run until 1 August 2018 becomes a nullity and must start de novo. The
blame for this falls squarely upon the State and its legal representatives.’

[41] I revert to the merits of the application. The respondents approached
the court in terms of s 38 of the Constitution.13 The right which they assert is
set out in s 35(3)(d) of the Constitution which provides:
‘Every accused person has the right to a fair trial, which includes the right:
. . .
(d)
to have their trial begin and conclude without unreasonable delay.’

[42] The remedy of a permanent stay of prosecution has been described as
‘extraordinary’.14 A permanent stay of prosecution will not be granted unless
the court is satisfied that there exists an unreasonable delay.15 Whether a delay
is unreasonable depends upon the circumstances of each individual case. In
order to determine whether a particular lapse of time is reasonable the court
will perform a ‘balancing act’ in which the conduct of both the prosecution
and the accused, the length of the delay, the reason which the State assigns to
justify the delay and the prejudice to the accused are weighed. The most
important factors bearing upon the enquiry relate to the nature of the offence,
the length of the delay and the reasons given therefor and the prejudice, actual
or potential, to the accused.16

[43] The charges against the respondents included racketeering, corruption
and illegal dealing in uncut diamonds. These are serious offences.
Racketeering may attract a sentence of life imprisonment17 and corruption,

13 The material portion of s 38 of the Constitution provides: ‘Anyone listed in this section has the right to
approach a competent court, alleging that a right in the Bill of Rights has been infringed or threatened, and
the court may grant appropriate relief, including a declaration of rights.’
14 See Wild and Another v Hoffert NO and Others 1998 (2) SACR 1 (CC); 1998 (6) BCLR 656 (CC) para 11.
See also Sanderson v Attorney-General, Eastern Cape 1998 (2) SA 38 (CC); 1998 (1) SACR 227 (CC) para
38 where the court considered the right to a speedy trial under s 25(3)(a) of the Interim Constitution of the
Republic of South Africa, 1993 (which although worded differently, has the same object).
15 Wild para 8, 9 and 28.
16 Sanderson para 25 and 31–35.
17 Section 3 of the Prevention of Organised Crime Act 121 of 1998.

which is disturbingly prevalent in South Africa, undermines the moral fibre
of our society. In Zanner v Director of Public Prosecutions18 this court noted
that the right of an accused to a fair trial requires fairness not only to him, but
fairness also to the public as represented by the State. It must instil public
confidence in the criminal justice system and in cases involving serious crime
the interest of society demands that the State bring an accused to trial.19

[44] However, the high court was critical of the charges, particularly, of
racketeering. Daffue J remarked:
‘. . . 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, 121 of 1998 (“POCA”) as is apparent from the indictment. In order to do so, it came
up with a novel, outrageous argument – bordering on fiction – that an enterprise has been
established by the agent, the Boss and Erasmus (the s 204 witness), as the members of the
criminal association so formed . . . Although I raised my eyebrows in disbelief when I read
this in the summary of substantial facts I was not addressed on the issue and will not say
much more, save for some final remarks . . . .’

[45] These unfortunate remarks create the regrettable perception of an
unjustified bias. The judge a quo had not heard argument on the matter neither
had he heard the evidence. Neither the agent nor Erasmus had testified and
Potgieter (the Boss) had not completed his evidence. The criticism of the
charges, instituted on the authority of a certificate issued by the NDPP, was
premature. What is important for purposes of the inquiry is the gravity of the
charges.

18 Ibid fn 18.
19 Zanner v Director Public Prosecutions, Johannesburg 2006 (2) SACR 45 (SCA); [2006] 2 All SA 588
(SCA) para 21.

[46] Reverting to the question of delay, in Sanderson Kriegler J stated:
‘. . . The courts will apply their experience of how the lapse of time generally affects the
liberty, security and trial related interests that concern us. Of the three forms of prejudice,
the trial related variety is possibly hardest to establish, and here as in the case of other
forms of prejudice, trial courts will have to draw sensible inferences from the evidence. By
and large, it seems a fair although tentative, generalisation that the lapse of time heightens
the various kinds of prejudice that s 25(3)(a) seeks to diminish.’20

[47] Kriegler J noted too that if an accused has been the primary agent of
delay he should not be able to rely on it in vindicating his right to a trial within
a reasonable time. He should not be allowed to complain about periods of time
for which he has sought a postponement or delayed the prosecution in ways
that are less formal.21 Kriegler J noted that systemic delays caused by court
congestion are probably more excusable than cases of individual dereliction
of duty.22

[48] The respondents complain both of delays which occurred during the
trial which has now become a nullity and the delay which is occasioned by
the recusal of the trial judge.

[49] In respect of the former the high court remarked, as a point of departure,
in assessing delay:
‘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 record shows

20 Sanderson para 30.
21 Sanderson para 33; see also Van Heerden and Another v National Director of Public Prosecutions and
Others [2017] ZASCA 105 (SCA); 2017 (2) SACR 696 (SCA).
22 Sanderson para 35.

that the first witness in the criminal trial testified only two years later, i.e. on
10 August 2016 . . . .’

[50] These remarks do 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 and further
accused had been arrested after 25 August. The matter was postponed to
13 October 2014 when, on the very first joint appearance an application was
brought in terms of s 342A(3)(c) to investigate the delay on the part of the
State. The application was correctly dismissed. The matter was complex, as I
have said, and substantial evidence was involved. Whilst the papers did not
expressly deal with the events after the first postponement warning statements
had to have been obtained from the various accused which, no doubt, required
further investigation. In my view it would have been remiss of the State to
proceed with charges without first investigating explanations given or
averments made in the warning statements. There was nothing in the papers
which could support a conclusion that the request on 13 October 2014 for a
postponement for purposes of further investigation was not well justified.
Criticism thereof by the high court was, in my view, ill-founded.

[51] On 25 January 2015 the accused were separated into various groupings.
In respect of one accused, probably as a result of the further investigation, the
charges were withdrawn. Some accused were charged only of dealing in
diamonds whilst others were earmarked for prosecution under s 2 of POCA.
At this early stage trial dates were already agreed with all the representatives
for November 2015. There was no suggestion that the State had not been ready

to proceed. At that stage there were 20 accused; the papers do not reveal how
many different legal representatives were to be accommodated in the
agreement on the trial dates and the papers did not suggest that this delay was
attributable to dilatoriness of the prosecution.

[52] Things changed in July 2015 when Mr Hodes was briefed on behalf of
some of the respondents. The trial dates were not suitable to him and new trial
dates had to be obtained from the Judge President for April 2016. The
availability of Mr Hodes accordingly delayed the commencement of the trial
at this stage by nearly five months. This delay cannot be ascribed to the State.

[53] At the pre-trial procedure in September 2015 agreement was reached
that the initial days of the originally agreed trial dates, when Mr Hodes was
available, would be utilised for purposes of any preliminary applications.
Various applications were brought as set out earlier, including an application
in terms of s 342A(3). Argument could not be completed during the allocated
period and the preliminary applications were postponed on two occasions to
finalise argument. These postponements again delayed the commencement of
trial beyond the dates allocated by the Judge President. The trial judge ruled
on the applications on 16 May 2016. The preliminary applications were
predominantly unsuccessful. However, the State was ordered, as I have said,
to provide some further particulars. Its earlier resistance to the disclosure
thereof was not due to any dilatory or indecisive conduct, nor has it been
suggested that the State had been unable to provide these promptly. The delays
which occurred as a result hereof cannot be blamed on the State. The State did
indeed have ‘its ducks in a row’ and had been in a position to proceed. It was
not improper for Mr Roothman to defend his right not to provide further

particulars or disclose certain documents and the ruling by the trial judge
largely vindicated his decision.

[54] The affidavit of Brooks reflects a thinly veiled suggestion that
Mr Roothman had misled the court in suggesting that he had no further
documents to discover. In fact, on Brooks’ own version, what Mr Roothman
contended was that he had no other witness statements in his possession. The
very essence of the opposition to the application, as set out earlier, had been
that he was not required to disclose the further documentation in his
possession. The scurrilous attack on Mr Roothman in this respect was
unwarranted.

[55] In consequence of the delay occasioned by these applications new dates
had been allocated for the trial which had to commence on 1 August 2016. On
the morning of trial, however, a number of the accused approached the State
to negotiate a plea in terms of s 105A of the CPA. This could not have been
foreseen by Mr Roothman and the delay which ensued thereafter is
attributable to the decision of some of the accused at that stage. In all the
circumstances the evidence indicates that the State proceeded with due haste
to commence the proceedings. The delays which occurred after
25 January 2015 to the commencement of trial can predominantly be
attributed to delays incurred at the instance of the respondents or their
erstwhile co-accused.

[56] The delays which occurred between 11 and 13 August 2016 could
likewise not be attributed to the State. These delays could have been averted
had the specific documentation been requested before Dreyer had testified.

[57] On 23 September 2016 the trial-within-a-trial was ordered. The State
was unprepared to proceed immediately and sought an indulgence to prepare.
The trial was accordingly postponed at this stage as the period allocated for
the trial on the running roll had expired. The delay attributable to
Mr Roothman’s unpreparedness was therefore minimal. The trial-within-a-
trial was scheduled to commence on 30 January 2017 and the State was ready
to proceed. It was then delayed for more than two weeks due to the
unpreparedness of Mr Price. Once the trial-within-a-trial did proceed Korff
testified at some length and handed in a considerable volume of documents
which had not been provided to the State prior to his testimony. This
necessitated a postponement in order for Mr Roothman to consult with various
witnesses and study the documentation. These delays too could have been
avoided had Mr Price provided the documentation to Mr Roothman prior to
calling Korff. The blame cannot be laid at the door of the State.

[58] The State was plagued on various occasions by the illness of
Mr Roothman’s wife and of witnesses, predominately Potgieter. Brooks, in
his founding affidavit, did not accept that Potgieter was indeed ill and, as set
out earlier, criticised him for his failure to return to continue his testimony and
cross-examination for an indefinite period. The criticism was not justified.
The evidence established that on each occasion medical opinion supported his
illness and that he had been booked off. There is no evidence that the
respondents challenged the validity of the medical opinion at that time. The
suggestion that Potgieter had failed to return to the witness box for an
indefinite period to continue with his testimony is also unfounded. The trial-
within-a-trial was incomplete when the second recusal application was moved
and there is no evidence that Potgieter was at that time unable or unwilling to

complete his testimony. It was within the discretion of Mr Roothman to decide
at what stage he wished to recall Potgieter. Delays which occur due to
unforeseen illness of witnesses are not uncommon in litigation.

[59] So, although a substantial period of time may have lapsed before the
second recusal application was made it is predominately attributable to one or
more of the respondents, the illness of witnesses, or, in some instances
systemic difficulties, such as the long leave of the presiding judge and the
exigencies of the court roll.

[60] I turn to consider the events giving rise to the second recusal
application. The respondents who supported the application relied primarily
on two grounds. Firstly, the failure to advise them of the attempt to bribe the
trial judge, and, secondly the non-disclosure of Jephta’s statements of the
attempt to bribe him. In this regard the high court observed:
‘I do not wish to criticise my colleague for not informing the legal representatives of the
conversation with Captain Gugu . . . However, I believe that I would probably have acted
differently.
. . .
This does not support the State in casu. The DPP in Kimberley was well aware of the
situation and even instituted investigations. I personally believe that the trial judge should
have informed the parties immediately in order to obtain assurances that none of the
applicants were responsible for the alleged threat/or attempt to bribe.
In my view 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 attempts to bribe the
trial judge and a crucial witness. If the matter was openly discussed there and then, that is
in August 2016, the trial would in all probably not have become a nullity in August 2018,
two years down the line and after numerous witnesses have testified . . . .’

[61] The approach to the trial judge by Gugu occurred in August 2016. There
were at that stage 13 accused before her. Prima facie, the logical inference at
the time would have been that the approach to her had in all probability, been
prompted by or on behalf of one or more of the respondents. No indication
was provided to her of the identity of the persons who might have instigated
the approach and it is inconceivable, in my view, that anyone could have
perceived her to hold a bias against any particular respondents as a result of
the event. I do not consider in these circumstances that any duty rested upon
her to advise the accused of the approach by Gugu. In the event that one or
more of the respondents had initiated the approach it is naive to suggest that
those responsible would have admitted it to the trial judge. The conduct of the
trial judge after the unsolicited approach to her cannot be faulted.

[62] The office of the Chief Justice had requested the DPP to have the matter
investigated. The attempted bribery of a high court judge presiding in a
criminal trial, coupled with a threat to her safety, is a serious matter. An
investigation docket was opened in order to probe these allegations. To alert
the respondents, who as a matter of logic, as I have said, were suspects, could
only have served to prejudice the entire investigation and with it the
administration of justice. Assurances from the respondents of their innocence
would have been predictable, but of no assistance. The caution expressed by
Harms JA in National Director of Public Prosecutions v King23 is appropriate
in this regard where he observed:
‘Courts should . . . be aware that persons facing serious charges – and especially minimum
sentences – have little inclination to co-operate in a process that may lead to their
conviction and, “any new procedure can offer opportunities capable of exploitation to

23 National Director of Public Prosecutions v King [2010] ZASCA 8; 2010 (2) SACR 146 (SCA) para 5.

obstruct and delay.” One can add the tendency of such accused, instead of confronting the
charge, of attacking the prosecution.’

[63] These remarks are particularly apposite to this case. None of the
respondents have expressly distanced themselves from the approach to the
trial judge, instead, they have launched a scathing attack on the State for its
failure to advise of its knowledge of the investigation. For the same reasons
that it would have been inappropriate for the trial judge to advise the defence
of the approach I do not consider that there was any ethical duty on the State
to reveal the existence of a separate, and sensitive, investigation unrelated to
the events forming the subject matter of the criminal trial, prior to its
completion. Once the investigation was complete the DPP did advise the
respondents and provided a copy of the docket.

[64] The approach by Gugu to the trial judge, and the content of the docket,
could have had no bearing on the issues in the trial before her. Again, the
observations by Harms JA in King are instructive where he said:
‘There is no such thing as perfect justice – a system where an accused person should be
shown every scintilla of information that might be useful to his defence – and discovery in
criminal cases must always be a compromise. Fairness is not a one-way street conferring
an unlimited right on an accused to demand the most favourable possible treatment, but
also requires fairness to the public as represented by the State. This does not mean that the
accused’s right should be subordinated to the public’s interest in the protection and
suppression of crime; however, the purpose of the fair trial provision is not to make it
impractical to conduct a prosecution . . . .’24

24 King para 5.

[65] In respect of Jeptha’s statements the trial judge in the second recusal
ruling held:
‘It raises a question though as to why the State decided to hold onto the agent’s statements
for so long and not discover them when the defence asked for further particulars. The State
instead told the court that there was nothing to discover.’
Neither her ruling nor the affidavit of Brooks identified the occasion where
Mr Roothman assured the court that there was nothing to discover.

[66] The first application to compel the discovery of further documentation
and further particulars commenced on 9 October 2015 and argument was
completed on 20 April 2016. In the course thereof Mr Roothman contended,
allegedly in February 2016, that the State had disclosed all witness statements
and that there was nothing more to discover. The contentious statements of
Jephta were not in existence at the time, the first thereof having been taken on
16 June 2016. Similarly, the additional affidavit by Serfontein did not exist at
the time and, as explained by Mr Barnard, the prosecution was not in
possession of the two CDs which were provided in June 2018. It is moreover
apparent from the ruling of the trial judge in the recusal judgement that no
reliance was placed on the late discovery of the CDs in the second recusal
application.

[67] On 17 June 2016 a further application was brought by the third
applicant for the delivery of further particulars. This application was prompted
by a newspaper article relating to allegations made by Korff. As I have said,
Mr Roothman contended that the documents provided to the State by Korff
were privileged and covered by a non-disclosure agreement. This was a legal
argument which he was entitled to raise. There is no averment that

Mr Roothman on this occasion contended that the State was not in possession
of further documentation unrelated to the further particulars requested.

[68] Botha was the acting DPP and had authorised the s 252A application
on behalf of the DPP. He was called to testify in a trial-within-a-trial in respect
of the authorisations which he granted. At an early stage in cross-examination
he was requested by counsel for certain of the appellants to confine himself to
issues about the admissibility of the trap evidence. The issue of the attempt to
bribe the trial judge or Jephta had been irrelevant to his testimony in respect
of the s 252A authorisations. There was no reason for Botha to have referred
to these allegations or the statements in respect thereof.

[69] As for the accusation of perjury, credibility findings are best left to the
trial judge. There was no transcript of the trial proceedings annexed to the stay
application and the alleged portion of Botha’s evidence had not been placed
in any proper context to enable the high court to assess it. There was
accordingly no factual basis laid for the allegation that Botha had deliberately
lied under oath. The allegation is a serious one, made, as it was, against an
officer of the court. Where litigants seek to attack the integrity of officers of
the court a firm factual basis must be laid for the conclusion contended for.
This was not done. I shall revert to this issue below in consideration of an
appropriate order for costs. Suffice it to say that the criticism by the trial judge
of Mr Roothman and the unsubstantiated attack by Brooks upon Botha on this
aspect was, in my view, not justified.

[70] The statements of Jephta had been the subject of a separate enquiry. It
dealt with allegations of corruption and defeating the ends of justice, which

are events extraneous to those which form the subject matter of the
prosecution and the investigation thereof remained incomplete at the time of
the stay application. The only relevance which the statements may have had
to the prosecution relates to the cross-examination of Jephta. They could have
had no bearing on the substance of the defence raised by any of the
respondents and it has not been suggested that any of the respondents would
have conducted their defence differently had they had knowledge of Jephta’s
statements. Jephta had not yet testified and to the extent that these statements
may have had a bearing on the preparation of the cross-examination of Jephta
they were timeously provided. No prejudice could accordingly arise from the
fact that these statements, originating from a separate inquiry were provided
at a late stage. It follows that the finding of the high court that the prosecution
was under an ethical obligation to disclose the approach made to the trial judge
and the additional statements of Jeptha at an earlier stage cannot be sustained.

[71] In respect of the prejudice, or potential prejudice, each of the
respondents have also set out the personal prejudice which they have suffered.
Their arrest enjoyed considerable publicity, each was required to pay
substantial amount for bail and they personally were exposed to negative
publicity which affected not only their persons but also their business
interests. Their children have been subjected to ridicule at school and their
finance houses have shown greater reluctance in assisting them.

[72] Each have engaged counsel of varying seniority but in every case at
considerable expense. However, a permanent stay of prosecution will
generally only be granted where trial related prejudice has been suffered,
unless there are circumstances rendering the case so extraordinary that a

permanent stay of prosecution is the only appropriate remedy.25 A party
seeking a permanent stay of prosecution is required to show ‘definite and not
speculative prejudice in order for it to be considered irreparable trial
prejudice’.26

[73] In this instance, by virtue of the recusal of the trial judge, all
proceedings before her have been nullified. Proceedings would accordingly
be required to start de novo. It is, however, for the prosecution to decide
whether proceedings would be instituted afresh, and if so, in respect of which
offences.27 The DPP is not bound by the indictment dated 5 August 2016.
Much reliance was placed by the respondents on the strength of the State’s
case, the reliability of the evidence of Potgieter and that of Jephta and the
admissibility of audio and video evidence. It is premature at this stage to draw
any conclusion on any of these aspects. Suffice it to say that the DPP would
have to give careful consideration to these issues prior to taking a decision as
to whether it wishes to proceed with a new prosecution. In doing so they
would give consideration to evidence led before Pakati J. They may decide to
proceed on lessor charges, or against only some of the respondents, but they
should have the opportunity to do so. As I have said, the stay application was
launched just 14 days after the recusal. This is not a case where the DPP has
shown any dilatoriness in this respect and there is no evidence that they have
been put to terms to take such a decision.

25 Wild para 27. See also Sanderson para 38.
26 See Bothma v Els [2009] ZACC 27; 2010 (1) SACR 184 (CC) para 68.
27 See S v Gumbi and Others [2018] ZASCA 125; 2018 (2) SACR 676 (SCA) para 9.

[74] The trial prejudice which the respondents were required to establish
relates to prejudice in a new trial. In this regard it was alleged that it is doubtful
whether Korff and Potgieter would ever return to court to testify. This
assertion was purely speculative in nature and no facts were alleged to support
the conclusion. The significant payments made to Jeptha and the promise for
a further exorbitant payment were raised to attack the fairness of the trial, if it
were to proceed. These considerations may potentially have an impact upon
the reliability, and perhaps credibility, of the evidence of Jephta. The
admissibility thereof would have to be determined in the new trial. The
presiding judge would have to hear the witness, give due consideration to all
the factors raised, including the criticisms of the investigation and the
payments made, and then to assess the credibility and the reliability of the
witness in conjunction with all the admissible evidence placed before him or
her.

[75] The payments allegedly made to Potgieter are on a similar footing.
Potgieter has not been cross-examined in the trial-within-a-trial. These alleged
payments would have to be canvassed with him; his version of events heard;
and his explanations tested for the presiding judge to consider his credibility
and reliability. An allegation of impropriety on the part of a State witness,
even the investigating officer cannot, of itself, render the trial unfair.

[76] I have dealt earlier with the additional statements received from Jephta
and, as I have said, in my view, they can have bearing only on the credibility
or reliability of Jephta’s evidence. The respondents did not allege that any of
them would have conducted their defence differently had they been in
possession of the statements at an earlier stage. Jephta has not testified yet and

the defence are in possession of these statements. No basis has been laid for a
conclusion of prejudice in a future trial relating to the late delivery of these
statements.

[77] In the final analysis the court is required to exercise a value judgment
in assessing the reasonableness of the delay.28 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. Nor, in my view, have the
respondent shown actual trial prejudice if the trial were to commence de novo.

[78] The case is not so extraordinary that a stay of prosecution is 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. 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.

Costs
[79] The application for a permanent stay of prosecution raises important
constitutional issues and generally a court would be disinclined to make a
costs order against such applicants. This is so as litigants should not be
discouraged by the threat of an adverse costs order from approaching a court
to vindicate their constitutional rights. What distinguishes this case from the

28 Van Heerden para 54.

general rule is the manner in which it has been conducted. The unwarranted
and unsubstantiated attacks upon the professionalism and integrity of officers
of the court, who are not even parties to the litigation, in the performance of
their professional duties was ill-advised and unjustified. Whilst not all of the
respondents supported the application for the recusal of the trial judge they
have all aligned themselves with the averments made by Brooks in this regard.
For these reasons I would uphold the appeal with costs, including the costs of
two counsel.

__________________________
J W EKSTEEN
ACTING JUDGE OF APPEAL

Molemela JA (Mocumie JA and Ledwaba AJA concurring)

[80] I have read the judgment of my brother, Eksteen AJA (the first
judgment). Although I agree that the appeal ought to succeed, I am, for the
reasons indicated hereafter, unable to agree with the costs order proposed in
the first judgment.

[81] It is trite that, at the end of the day, each case must be decided on its
own peculiar facts. A fact that cannot be disregarded in this matter is that the
charges in this matter emanated from an entrapment that was duly authorised
in terms of s 252 of the CPA. This means that the state, as dominus litis, is the
party that determined when the covert operation had to stop and when

consequent arrests had to be effected. Despite this, subsequent to the arrests
of the respondents, it was the State that applied for a postponement of the
matter, purportedly for further investigations.29 The inevitable postponement
of the matter, for a period of three months, was at the instance of the
prosecution. At the next appearance, the State again applied for a
postponement, which was opposed by the defence. The matter was
nevertheless postponed to enable the State to file a certificate from the NDPP.

[82] In Sanderson, the Constitutional Court cautioned as follows:
‘. . . [J]udges must bring their own experiences to bear in determining whether a delay
seems over-lengthy. This is not simply a matter of contrasting intrinsically simple and
complex cases. Certainly, a case requiring the testimony of witnesses or experts, or
requiring the detailed analysis of documents is likely to take longer than one which does
not. But the prosecution should also be aware of these inherent delays and factor them into
the decision of when to charge a suspect. If a person has been charged very early in a
complex case that has been inadequately prepared, and there is no compelling reason for
this, a court should not allow the complexity of the case to justify an over-lengthy delay. .
. .’30

[83] I tend to agree with the high court’s postulation that given the fact that
this was an entrapment case, one would have expected the State to have had
all its ducks in a row. Indeed, based on this aspect, one would have expected
the prosecution to be in a state of readiness regarding any information within
its possession, and to swiftly make the information sought by the respondents
available. This is especially because Adv Botha, having authorised the

29 See para 5 and 6 of this judgment.
30 Sanderson para 34.

entrapment, was involved in the operation from its inception.31 Alas, there
were numerous postponements for purposes of furnishing further particulars.

[84] It is noteworthy that as late as 16 May 2016, the trial Judge still had to
compel the State to furnish further particulars requested approximately six
months before that date.32 Given this late submission of further particulars,
the trial could not have commenced on the first trial date that had been agreed
upon. The late commencement of the trial is therefore not solely attributable
to Mr Hodes only coming on the scene on behalf of some of the respondents
in July 2015.

[85] Moreover, despite the various interlocutory applications requesting
further particulars, it turned out that certain CD recordings33 that were stored
in Warrant Officer Potgieter’s computer were never made available to the
respondents34 until 20 July 2018. Warrant Officer Potgieter, as the erstwhile
investigating officer and Jephta’s handler, played an integral role in the
investigation and prosecution of this matter. His failure to disclose the CD has
not been explained.

[86] The CD’s in question were apparently discovered when the new
investigating officer, Col Botha, took over as the investigating officer. The
date on which Col Botha disclosed the existence of these CDs to
Mr Roothman has not been disclosed in Mr Barnard’s affidavit. In my view,
the two year delay in disclosing the existence of the CD recordings does not

31 See para 27 of this judgment.
32 See para 12 of this judgment.
33 See para 34 of this judgment.
34 Ibid.

fall within the category of systemic delays; rather, it is an inexcusable
dereliction of duty on the part of a key member of the prosecution team: the
investigating officer.35 That conduct is undoubtedly at odds with the following
dictum in Wild: ‘Endemic blemishes in our criminal justice system . . . must
be addressed conscientiously by investigating officers, prosecutors, judicial
officers and administrators’.36 Taking into account the principles of
accountability, the State should shoulder the blame for Warrant Officer’s
conduct.

[87] The first judgment correctly records that on 17 June 2016,37 another
interlocutory statement was made on behalf of some of the respondents,
specifically in relation to Jephta having been paid a substantial amount of
money to be an agent and in return for his testimony against the respondents.
It is common cause that by that date, Jephta had already signed the first
statement, with the investigating officer (Potgieter) signing as a commissioner
of oaths. Notwithstanding the existence of the statement signed by Jephta, it
was not disclosed to the defence on that date. This is not to suggest that
Mr Roothman was aware of its existence.

[88] On 23 July 2018, it was Mr Roothman who volunteered all the
statements previously made by Jeptha, to the defence. There is no record of
him having advanced any reasons for the state’s failure to disclose these
statements at an earlier stage. Without ascribing any fault to Mr Roothman for
the late disclosure of Jephta’s statements, what is of importance is that

35 Sanderson para 35.
36 Wild para 12.
37 See para 67 of this judgment.

Mr Roothman considered it prudent to disclose these statements to the defence
before adducing Jephta’s evidence. That he considered it important to do so
is a relevant consideration in this matter. In Shabalala and others v Attorney
General,38 the Constitutional Court observed that a late disclosure of a state
witness may potentially result in the accused being unable to timeously
identify witnesses who would have been able to contradict the assertions made
by that state witnesses. I do not think that there is any need to speculate on
whether that late disclosure is likely to have a bearing on the substance of the
respondents’ defence,39 considering that the respondents expressly stated that
the statements that were withheld were vital to the preparation of their
defence.

[89] With regards to the recusal of the trial Judge, it is common cause that
the State did not oppose the recusal application. I am mindful of the fact that
an independent and impartial Judge is not expected to defer to opinion of
others in coming to his or her decisions, including on an application for
recusal. While the views of the respective parties in respect of the application
for the recusal of the trial Judge could never be elevated to evidence, I do find
it ironic that in this matter, active opposition to the recusal application came
from some of the respondents’ ‘co-accused’ and not from the State Advocate.
To my mind, the views of the State in relation to that recusal application would
have been a relevant consideration in the matter, especially in an application
launched at such an advanced stage of the proceedings.

38 Shabalala and Others v Attorney-General of the Transvaal and Another 1996 (1) SA 725; 1995 (12) BCLR
1593 para 37.
39 See para 70 and 76 of this judgment.

[90] As things turned out, the supine attitude adopted by the State in the
recusal application had certain repercussions. As correctly mentioned in the
first judgment, Jephta’s statements were withheld from the defence. This non-
disclosure triggered the recusal application. It is clear from the recusal
judgment that no explanation for the late disclosure of Jephta’s statements was
given by the prosecution to the trial Judge despite several defence counsel
having raised the late disclosure of Jephta’s statements as an issue and also
having identified it as one of the reasons for seeking the recusal of the trial
Judge. All that was before the court was the letter from the prosecution which
states, without any explanation, that ‘it appears as though the contents hereof
[have not yet been] submitted to you’.

[91] In the course of handing down her recusal judgment, the trial Judge
stated as follows:
‘It raises a question though as to why the state decided to hold onto the agent’s statements
for this long and not discover them when the defence asked for further particulars. The
state instead told the court that there was nothing to discover. It is therefore mindboggling
that the day the agent was supposed to testify on 31 July 2018, the state handed the
statements to the defence. In my view the officers are the officers of the court and have an
obligation to the court and also to see to it that justice is done all the time.’
I pause to mention that it is clear from this passage that some of the allegations
made by the respondents against Mr Roothman merely constituted an echoing
of the sentiments already expressed by the trial Judge, rightly or wrongly, in
relation to the late disclosure of Jephta’s statements.

[92] It is trite that the State is expected to respond somewhat
comprehensively to the allegations made against it regarding its failure to

furnish documents.40 The remark made by the Judge was not proven to have
been misplaced. As correctly stated in para 68 of this judgment, we were not
provided with the transcript of the trial proceedings and are therefore not privy
to the discussions between Mr Roothman and the trial Judge in relation to the
availability of further witness statements. What we do know, however, is that
the trial Judge bemoaned the fact that she had been given an inaccurate
assurance by the State. In the absence of any refutation, we are obliged to
accept that the trial Judge would not have voiced a criticism if it was not
justified by what transpired during the proceedings. Against this background,
it seems to me to be unfair to take these statements into account when
castigating the respondents for the allegations they made against some of the
members of the prosecution team.

[93] Notably, Mr Barnard’s explanation about the CDs and Jeptha’s
statements appears in Mr Barnard’s answering affidavit, which was obviously
filed after the deponents had already moved their application for the stay in
prosecution. Significantly, Mr Barnard conceded that an explanation
regarding the late disclosure of the CD recordings ought to have been given.
The date on which Mr Roothman became aware of the existence of
Mr Jephta’s statements has not been mentioned in Mr Barnard’s affidavit. All
that was stated in relation to those statements was that the State had decided
to provide them to the defence in anticipation of an application for recusal and
also because the State intended canvassing the bribery allegations in Jephta’s
testimony.

40 Compare van Heerden v NDPP paras 31 and 32.

[94] The allegations made by the respondents in relation to Mr Roothman
must therefore be seen in a proper perspective: first, Mr Roothman was
present when the late disclosure of Jephta’s statements was criticised by the
defence counsel but did not give the court the benefit of his explanation;
second, the explanation about the circumstances in which the CDs were
discovered had been unknown to the respondents and only came to light in
Mr Barnard’s affidavit filed in opposition of their application. It is against that
light that the respondents’ conduct in pursuing the application for the stay in
prosecution must be seen. Consequently, I am unable to agree with the first
judgment’s finding that the conduct of the respondents warrants them being
mulcted with costs despite having raised a constitutional issue.

[95] As I conclude, it bears mentioning that the first judgment correctly
observed that the delay, objectively speaking, has been substantial, albeit not
unreasonable.41 An undeniable fact that cannot be disregarded is that a trial de
novo is unquestionably going to cause a further delay in the finalisation of the
matter. As observed by this court in S v Suliman,42 a recusal, including one on
objectively inadequate grounds, does not amount to an irregularity amounting
to a failure of justice. This Court however, acknowledged that such recusals
occasion expense and inconvenience to the accused persons concerned. This
is the hardship that the respondents in this matter are inevitably faced with,
unless the State decides not to pursue the criminal proceedings against them.
This is a weighty factor that must surely count in favour of the respondents
when an appropriate order of costs is considered.

41 See para 77 of this judgment.
42 S v Suliman 1969 (2) SA 385 (A) at 392.

[96] The foregoing paragraphs were intended to demonstrate that this is not
a matter in which the State was blameless in relation to the numerous
postponements that were occasioned during the course of the trial. The
respondents can certainly not be regarded as the primary source of the
delays.43 Notably, some respondents did not, at any stage, participate in any
of the interlocutory proceedings which delayed the finalisation of the
proceedings. In my view, disentitling the State to an order of costs despite its
success in this appeal would, under the circumstances, be the appropriate way
of indicating this court’s displeasure with the State’s overall conduct in
relation to this matter.

[97] It was stated in Lawyers for Human Rights v Minister in the Presidency
and others44 that the well-established test when considering whether to award
a costs order against a private party in a constitutional litigation is whether the
litigation in question was frivolous, vexatious or manifestly inappropriate.
The court stated that ‘to be subject to an adverse costs order, the litigant’s
conduct must be worthy of censure’. Given the peculiar circumstances
highlighted above, I am unable to find that the respondents’ conduct warrants
an order mulcting them with costs.

[98] For all the reasons alluded to, above, the following order is made:
The appeal is upheld.
The order of the high court is set aside and replaced with the following:

‘The application is dismissed.’

43 Compare Sanderson para 33.
44 [2016] ZACC 45; 2017 (1) SA 645 (CC); 2017 (4) BCLR 445 (CC) at para 7.

______________
M B Molemela

Justice of Appeal

Appearances

For Appellant:
J G Van Niekerk SC
(with him S L Erasmus)
Instructed by:

State Attorney, Kimberley

State Attorney, Bloemfontein

For 1st Respondent:

E Sithole
For 2nd & 5th Respondents:

Saleem Ebrahim Attorneys
For 3rd and 8th Respondents:

M M Hodes SC
For 4th and 6th Respondents:

L M Hodes SC
For 7th, 9th, 11th and 12th Respondents: C F Van Heerden
For 10th and 13th Respondents:
J J Schreuder
Instructed by:
(1st – 6 and 8th Respondents)

Saleem Ebrahim Inc, Johannesburg

Bezuidenhouts Inc, Bloemfontein
(7th, 9th, 11th and 12th Respondents)
Towell & Groenewaldt Attorneys,

Kimberley
(8th Respondent)

Engelsman Magabane Inc, Kimberley