The National Prosecuting Authority argues that the state will be left insolvent if the high court in Johannesburg delivers a precedent-setting judgment forcing the National Prosecuting Authority (NPA) to buy a R1.6m IT tool to allow the accused in the Transnet multimillion-rand corruption case to interrogate data. The case-centered on former Transnet executives, including Brian Molefe (ex-CEO), Anoj Singh (ex-CFO), and Siyabonga Gama (ex-CEO)-now hinges on whether the court orders this expense as a prerequisite for fair proceedings.
They are seeking to have the case dismissed due to alleged ‘unreasonable delays’.
Gama and his co-accused have requested the court to investigate whether there have been unjustifiable delays in the criminal proceedings, which they claim could significantly harm the prosecution’s case.
If the court agrees that the delays were unreasonable, the defendants want the case dismissed. Should the court find there were unreasonable delays, the applicants want the matter to be struck from the roll and that prosecution may not be resumed or instituted afresh without written instruction from the NPA head, Andy Mothibi.
Emile van der Merwe, representing the NPA, argued that dismissing the case would result in a lengthy delay before it could go to trial, as the case was first enrolled in 2022.
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Van der Merwe stated that the state is not responsible for the delays, pointing out that the accused requested 22 postponements, while the state only asked for five.
According to Van der Merwe, the trial was scheduled to begin on February 2 but was postponed due to an pending interlocutory judgment and some defendants lacking funds for legal representation.
Accused Demand Software Tool
The case is currently delayed because the accused want the state to provide a R1.6 million software tool to examine a 49TB data set obtained by the state to verify evidence authenticity.
The 49TB data set includes data of Transnet and Regiments Capital, a company implicated in the case.
Van der Merwe noted that the accused already have access to the data set, but now demand a specialized tool to scrutinize the evidence. “They want a specialised tool to study the data set,” he said. “They do not want the little Volkswagen; they want the Rolls-Royce.”
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If the court orders the state to provide this specific tool, it could set a precedent, allowing all accused individuals nationwide to make similar demands, potentially crippling the justice system due to the financial burden on the state. “If this court makes an order that the state must supply this specific tool that the accused want, then all accused across this country are immediately, based on the authority of this judgment, allowed to claim the same. What would happen? The whole justice system would be at a standstill immediately because the state would be insolvent overnight.”
Van der Merwe said even if the accused were entitled to the specific tool they want, in the interest of justice across the country, the court cannot make such an order. “It would be impossible for the state to supply such tools each time in each case.”
Charges and Allegations
The accused are facing charges of the contravention of the Public Finance Management Act (PFMA), fraud, corruption and money-laundering, stemming from the locomotives transaction advisory tender awarded to the McKinsey-led consortium in 2012, resulting in the procurement of 1,064 locomotives valued at more than R54bn.
Other accused in the matter include Regiments Capital directors Niven Pillay and Litha Nyhonyha, Trillian Asset Management director Daniel Roy (Novum Asset Management) and Kuben Moodley, the Albatime owner.
According to the Transnet case, the accused allegedly irregularly benefited from Transnet’s irregular appointment, increasing the contract’s value and scope to over R305m.
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The high court postponed the Transnet corruption case for software experts to provide guidance in accessing the electronic contents of the disclosed data, with the experts expected to report to the court on October 21.
Court Seeks Expert Guidance
Acting judge Matodzi Nemavhidi ruled that software experts be availed on the set date to provide guidance in accessing the electronic data supplied in order for the accused to prepare for trial.
The court has not made a final order in the applications, Idac spokesperson Henry Mamothame said after the two-day hearing.
Advocate Kenny Oldwage, for Gama, argued that the state’s late disclosure of evidence affects the accused’s rights to prepare adequately and timeously.
The state disclosed the data set mere weeks before the trial was set to resume, which Oldwage said poses a significant threat to the proper administration of justice.
