Two of the men accused of being part of the looting spree at VBS Mutual Bank are so set on enforcing what they deem their constitutional rights, that they are prepared to go all the way up to the Constitutional court - an exercise which could delay the trial for years, the Gauteng High Court Pretoria was told.
The 13 accused were back in court to hear arguments on behalf of former ANCYL leader Kabelo Matsepe and former provincial ANC treasurer, Danny Msiza, for either a temporary stay of prosecution or a separation of trial.
Their advocate, Shaun Abrahams, told Judge Peter Mabuse that his two clients have approached the Supreme Court of Appeal to obtain permission to appeal against Judge Mabuse’s earlier refusal to order the State to issue the pair with further documents which they wanted.
While the prosecution did hand the contents of the case docket to them after their arrest, Matsepe and Msiza said they were entitled to far more information.
According to Abrahams they need this “vital information” to prepare for their trial.
The information include documents earlier submitted to the investigation team, led by advocate Terry Motau SC, who investigated the looting at VBS.
Abrahams, in arguing for a separation of trial or a temporary stay of prosecution, said as things stand, there is no indication when the main trial can start, as his clients first had to turn to the SCA in a bid to obtain these documents.
If they lost at the SCA, he said, his clients already indicated that they will turn to the Constitutional Court to have the final say on the matter.
The first hurdle is to obtain leave to appeal and once they have received the green light from the SCA, the actual appeal must still be decided on.
Abrahams said given the congested rolls of the SCA, there is no saying how long this can take, but it could be years.
Besides the SCA legal bid, his clients also have two more legal challenges up their sleeve before they can partake in the actual trial, he said.
While the prosecution and the other 11 accused are ready to proceed with the main trial, these legal bids will hamper this, Abrahams said.
According to him, the only solution is that the trial goes ahead without his clients at this stage.
He argued that it is his clients’ constitutional right to have all the information they need so that they could face a fair trial and they will leave no stone unturned to obtain this.
Judge Mabuse pointed out to him that the State said the accused do not need the additional information they want, especially the documents which served before the Motau Commission -- as the charges against them are not based on the Motau report.
But Abrahams was adamant that they cannot plead to the charges or prepare their defence without the additional information.
“My clients’ hands are tied, while the other accused are ready to proceed with the trial,” Abrahams said in a bid to convince the court to meanwhile proceed with the trial without his clients.
Some of the State witnesses in the main trial also have to testify for a second time in another related matter and they may just as well testify once again if his clients later face trial, he said.
One of the State’s main witnesses is Tshifhiwa Matodzi, the former VBS chairperson and mastermind behind the looting of R2 billion.
Matodzi was last month sentenced to 15 years’ imprisonment after he pleaded guilty and had cut a deal with the State that he would testify against his co-accused.
Abrahams said even if there was a separation of trials, Mathodzi “will go nowhere” (as he is in jail), thus he will be able to once again testify.
But, Abrahams argued, the judge can make things easier and reconsider his earlier refusal to force the State to provide them with the additional documents -- many of which are in the possession of the police -- that they want. This would then at least circumvent them from going to the SCA.
Prosecutor Hein van der Merwe opposed a separation of trials or a temporary stay of prosecution. According to him, there is no need for the additional information which the two accused wanted.
Van der Merwe said everything they need to prepare for their defence is contained in the docket -- which they have had since 2021.
The witnesses will present their evidence in court and if the accused then feel they need some additional information, the judge can handle it at that time, he said.
“The court needs to say enough is enough,” Van der Merwe said.
He accused the two men of “having a strategy to prevent the trial from starting”.
Judge Mabuse will on Friday deliver his judgment.
The 13 accused are facing an array of charges ranging from racketeering, money laundering and corruption to theft.
An amended indictment cites a total of 179 charges, although not all the accused face all the charges.
Among those who appeared before Judge Mabuse, were former VBS CEO Andile Ramavhunga; former treasurer Phophi Mukhobdobwane; KPMG auditor Sipho Malaba; Lieutenant-General Avhashoni Ramikosi, a non-executive director; and Ernest Nesane and Paul Magula, who both represented the Public Investment Corporation (PIC) on the VBS board as non-executive directors.
Pretoria News
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