Kimberley - While the diamond trial against 13 high-profile names in the local diamond industry continues in the Northern Cape High Court, a recent Supreme Court of Appeal judgment has been handed down regarding the forfeiture of the house of one of the accused, where several of the “deals” allegedly took place.
Ashley Brooks, Patrick Mason, Manojkumar Detroya, Komilan Packirisamy, Ahmed Khorani, Antonella Florio-Poone, McDonald Visser, Willem Weenink, Sarel van Graaf, Carl van Graaf, Kevin Urry, Trevor Pikwane and Frank Perridge currently face numerous charges related to the contravention of the Diamond Act and Prevention of Organised Crime Act, following their arrests in August 2014.
Judgment was recently handed down by the Supreme Court of Appeal following an application brought by Brooks and his wife, Charlene Brooks, against the National Director of Public Prosecutions earlier this year.
Brooks appealed a forfeiture order made under the Prevention of Organised Crime Act in which their house, at 2 Norris Street in Kimberley, be forfeited to the State on the basis that it was used in the commission of an offence, namely illegal diamond buying.
According to the judgment handed down by the Appeal Court “the basic facts are uncontroversial”.
“At the relevant times, the first appellant, Ashley Brooks (Brooks), was the holder of a prospecting right to prospect for alluvial diamonds on a farm in the Northern Cape. A part of the property was used as an office from where Brooks conducted his business,” the court papers state.
“From October 14, 2011 until January 22, 2014, the police, more specifically, members of the Directorate of Priority Crimes Investigations (DPCI) in the Northern Cape, were involved in a national covert operation authorised by the respondent, the National Director of Public Prosecutions (the NDPP) aimed at criminal syndicates and gangs involved in racketeering activities, illegal dealing in unpolished diamonds and using premises and other places not registered as diamond trading houses in contravention of the Diamonds Act.
“Between March 2013 and February 2014, the police, with the aid of Colin Erasmus (Erasmus), and an undercover agent (the agent) 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 the agent 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 DPCI (Potgieter) – who was the handler, tested and weighed the diamonds, which had serial numbers, in the presence of the agent, and instructed him to sell them to the dealer within a specific price range. The agent 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. The agent or the dealer paid Brooks between R8 000 and R10 000 for the use of the property, or because he facilitated the transaction. Brooks received R58 000 in total.
“The agent 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.”
It is stated that of the 19 transactions, 10 took place at the property between March 20, 2013 and 22 January 22, 2014. “The agent sold 78 unpolished State diamonds to the value of R9 689 073 for cash totalling R6 212 810.
“The diamonds were sold to the respondents cited in an application which the NDPP launched in the court a quo, for an order that the R6.2 million in cash and the property be forfeited to the State.
“It is common ground that except for Mr Joseph van Graaf (Van Graaf), the fifth respondent in the forfeiture application, none of the dealers or the agent has a licence to deal in unpolished diamonds.
“With the exception of Brooks, none of the respondents in the forfeiture application opposed forfeiture of the R6.2 million in cash.
“This is hardly surprising, since the cash was instrumental in the various offences of illicit diamond dealing, and virtually all the respondents do not hold a diamond dealer’s licence.”
Brooks’ wife “raised the so-called ‘innocent owner’ defence to the grant of a forfeiture order”.
“She and Brooks are married in community of property. In 2012 they bought the property, then a vacant piece of land, for R70 000. They pooled their savings and income, and with a loan from Mr Patrick Mason (Mason), an illegal diamond dealer and the third respondent in the forfeiture application, built a house on the land. Brooks and Mason are in business together.
“According to the wife, the house has been the family home since the end of 2012; that it is not utilised for any other purpose; and that she had no knowledge of illegal diamond dealing on the property, which took place whilst she was at work.
“She says that her husband, Brooks, is a partner in a business known as ‘GA Delwery’ and that she first became aware that her husband was involved in illegal diamond transactions when he was arrested in August 2014.”
The Supreme Court of Appeal points out that in the condonation application, Brooks chose not to deal with the merits of the forfeiture application.
“In his affidavits, Brooks denies the allegations against him, in particular that he was involved in any criminal offence or that he received R58 000. He then analyses the illegal transactions in Erasmus’ affidavit and says that not all the transactions took place on the property, which was incidental to the commission of the offences.
“The NDPP contends that there are reasonable grounds to believe that the property is an instrumentality of an offence under a law relating to the illicit dealing in precious stones contained.