This was the ruling made during a trial-within-a-trial, in the Northern Cape High Court on Tuesday morning as the trial of 13 prominent names in Kimberley’s diamond industry continued.
The 13 accused – Ashley Brooks, Patrick Mason, Manojkumar Detroja, Komalin Packirisamy, Ahmed Khorani, Antonella Florio-Poone, Kenyaditswe Visser, Willem Weenink, Joseph van Graaf, Carl van Graaf, Kevin Urry, Trevor Pikwane and Frank Perridge – are each facing between two and nine counts.
During previous court appearances, the prosecution initially refused to disclose all information regarding the entrapment process of the accused, who have been implicated in the illicit trade of diamonds worth millions of rands, with the State opposed to the defence’s application, claiming that the accused’s request was premature.
While justifying her ruling on Tuesday, Judge Bulelwa Pakati recalled that, nearly a year ago, she deemed it unnecessary to make certain pieces of information regarding Project Darling available to the defence, ruling at the time that this decision would be reviewed when an opportune moment presented itself.
This moment came when the State indicated its intention to call Warrant Officer Lochner, who was involved in the operation, to testify, resulting in the defence’s request for a trial-within-a-trial in order to be granted full disclosure.
On Tuesday, Pakati granted the defence’s request, which she felt would shorten the trial while also providing the accused with additional information to argue their case.
During the trial-within-a-trial, the State submitted a 252(A) application, which authorises law enforcement to make use of a trap, or to engage in an undercover operation, in order to detect, investigate, uncover or prevent the commission of any offence while further ensuring that information gathered during the operation remains admissible in court.
“The question is whether the State is positioned to determine their case and when it would be an appropriate time for disclosure,” Pakati explained on Tuesday before ruling in favour of the defence.
“This matter should not be heard on the basis of the constitutional right to freedom of information but rather in terms of the accused’s right to a fair trial."
“The State has handed in exhibits and it is unfair to expect the defence to assess their case when they are deprived of information.”
Pakati explained that there were still statements outstanding that were relevant and crucial to ensuring a fair trial, emphasising that the court retained discretion and that the State could not claim privilege at this stage.
“Therefore, the court rules that the State must provide full disclosure with the names of informants erased from the statements,” ruled Pakati.
The trial is expected to continue on Wednesday morning with the manager of Project Darling, Colonel De Witt Botha, from the Directorate for Priority Crime Investigation in Upington, on the stand.
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