A KwaZulu-Natal couple - on trial for alleged drug dealing - have failed in their attempt to have evidence obtained against them during a 2010 drug bust, ruled inadmissible in their criminal case. Picture: Archives

A KwaZulu-Natal couple, who are on trial for alleged drug dealing, have failed in their attempt to have evidence obtained against them during a 2010 drug bust, ruled inadmissible in their criminal case.

The couple approached the Pietermaritzburg High Court seeking an order that evidence obtained during raids at their properties should not be used in their criminal trial.

However, Acting Judge Sandhya Mahabeer this month ruled that Mogendren and Nirusha Gounden’s contention that they were suffering “financial distress” as a result of their ongoing trial in the Verulam Magistrate's Court, was not enough to warrant her intervention.

“The criminal justice process, by its nature, means that the expense accused persons incur when they elect to secure privately-funded representation, or losing one's employment, if relevant, may be harsh, but is it contrary to the interests of justice or the public interest? 

“We think not,” she said in handing down judgment.

Acting Judge Mahabeer also said that if the Goundens were to succeed in their application, it would probably “open the floodgates to innumerable similar reviews, entitling accused person to a piecemeal determination of incomplete criminal proceedings”.

The Goundens were charged with dealing in Mandrax tablets – estimated to be worth millions of rand – in 2010, after the authorities raided their properties and uncovered a cache of contraband.

They were also charged with possession of cocaine, ammunition and corruption for attempting to bribe two policemen.

Their trial got under way in February 2015

The Goundens challenged the admissibility of evidence seized during the search and seizure, on the basis that it was conducted without a search warrant.

On March 1 last year the magistrate ruled that the evidence obtained during the searches could be used in the case.

Three months after the magistrate's ruling on the issue, the Goundens approached the high court in a bid to have a judge review it and set it aside.

“The (Goundens) contend that the ruling should be reviewed and set aside 
because they are subject to a lengthy and expensive trial founded on inadmissible evidence, 
and they face financial distress,” the acting judge said.

But, she said, it was for the Goundens to justify the interference by the High Court in a trial continuing in a lower court and they had to – at the very least – show there were exceptional circumstances.

She found they had not done this.

“We are not persuaded that this is a matter in which this court ought to invoke its inherent power and engage in a review of the ruling which the (magistrate) made either before or after the trial-within-a-trial,” Acting Judge Mahabeer said.

The Goundens were also ordered to pay the costs of their application.