‘One trial per accused’ Western Cape high court directive could produce even more delay problems

3 Oct 2023

A directive, in an official Western Cape high court document and meant to have kicked in on Monday 2 October 2023, suggests that an accused may only be tried in one case at a time. This could cause snarl-ups, adding to heavy workloads and major gang cases draining resources.

In the Western Cape high court, it is not uncommon for an accused to be embroiled in more than one case at a time.

Take, for example, suspected organised crime kingpin Nafiz Modack.

He is expected to go on trial with several others in the Western Cape high court on an array of charges, including in connection with the assassination of policeman Charl Kinnear outside his Bishop Lavis home in Cape Town in September 2020.

More than one matter

Modack is also an accused in a separate case relating to massive tax fraud involving more than R46-million being heard in the same court.

Read more in Daily Maverick: Inside Nafiz Modack’s multimillion-rand VAT fraud case – a family affair with his mother and brother

There are probably several other examples of an accused being part of more than one case running in high courts in South Africa.

However, a “practice directive,” from the office of Acting Western Cape Judge President Patricia Goliath and dated 12 September 2023, suggests a “one trial per accused” approach may now be followed.

One trial per accused

The document, which Daily Maverick has seen, starts off with: “Hereunder the revision to the Western Cape Division of the high court, Cape Town, Practice Directives which will take effect from 2 October 2023.”

Another section of it says: “When an accused is on trial, or is awaiting trial, in the high court (in this division or any other), save with the prior authorisation of the Judge President no other matter in which he or she is to be tried in this division may be transferred to this Court until the matter in which the accused is on trial or is awaiting trial in the high court (in this division or any other) has been completed.”

In other words, different trials involving the same suspect should not run concurrently unless with permission from the relevant Judge President — and this is not necessarily limited to the Western Cape.

A trial can take several years (one against 28s gang leader George “Geweld” Thomas and others concluded with guilty findings in 2015 after about five years of proceedings), and the directive suggests that if an accused is the focus of more than one high court case, the second case may only take place after one is completed.

Double case drama

Daily Maverick understands this has caused concern among some in the legal fraternity as it means an accused facing two or more cases could have to wait for years for those trials to commence, yet alone conclude, as they may have to be heard one after the other.

This adds to other worries relating to court backlogs and prosecutor and judge workloads.

There have already been some hints that the “one trial per accused” directive, or something along its lines, has been taken seriously and previously considered.

Suspected Sexy Boys gang leader Jerome “Donkie” Booysen appeared in the Western Cape high court on 29 September 2023 along with other men accused of drug crimes.

He is a central accused in that Mandrax dealing case.

Daily Maverick understands there were some timing issues flagged because Booysen is also an accused in a separate murder case, which is also being heard in the Western Cape high court.

2025 trial versus place on hold

When Booysen appeared in court this past Friday for the drug case, the prosecutor wanted to postpone the matter to 2025.

However, Judge Robert Henney reportedly wanted him to find out if the drug case could instead be placed on hold.

The Daily Voice said Henny stated it would not be the first time the state was prosecuting an accused in two different trials.

It quoted him as saying: “These accused are going nowhere. This is a matter of logic and common sense. When you enrol two matters involving one accused, how did you foresee the trials would run?”

The drug case was postponed to February 2024 for pre-trial proceedings.

It is not yet clear how Booysen’s defence team could react if it is then heard that the matter is to be placed on hold.

‘No judges available’

Meanwhile, the murder case in which Booysen is also an accused is about the August 2017 killing of steroid smuggler Brian Wainstein in Cape Town.

Read more in Daily Maverick: Three accused in the murder of ‘steroid king’ Brian Wainstein have been killed – who’s next?

The trial was meant to have proceeded in July this year but did not because of a shortage of judges.

At the time, News24 quoted Henney as telling the court: “Today, we have to postpone almost 11 matters because there are no judges available.”

The murder case may proceed in June 2024.

‘Prosecutors must figure it out’

Another accused facing more than one trial in the Western Cape High Court is, of course, Nafiz Modack.

News24 reported in August this year that, in terms of Modack who faces the murder case as well as the VAT fraud one, Judge Nathan Erasmus had “said the prosecutors must discuss the matter [of which case is to be heard first] urgently to avoid a situation where the court orders… one of the cases be removed from the roll for the time being.”

The News24 article directly quoted Erasmus as saying: “If the prosecution in the two matters can’t agree on who does first, I will have to make that order. And I will make that order.

“Get it done quickly.”

Broader backlog issues

Daily Maverick has before reported on backlog issues at various courts.

Read more in Daily Maverick: Justice delayed is justice denied – we must speed up the court system under lockdown

The 2021-2022 Annual Judiciary Report said that at the end of the period under review, in other words, the financial year, “The total number of outstanding criminal cases in the various Divisions of the high court was 917, whereas the total number of backlog cases was 453, representing a backlog percentage of 49%.”

“[This] is, therefore, an underachievement of 19% against the set target of 30%,” it said.

Rolling blackouts were flagged as having “an adverse impact on the operations” at courts.

In August this year, GroundUp also reported on national backlog issues, including that there was a “severe shortage of judges” in courts.

Gang cases using up resources

The Western Cape high court, though, faces particular issues because of major organised crime cases were draining resources there.

Last month Acting Western Cape Judge President Patricia Goliath told Daily Maverick: “There are currently a substantial number of high-risk gang-related matters with multiple accused on trial in this division. These matters are absorbing a large amount of resources, including judges, and often run for multiple terms…

Read more in Daily Maverick: ‘High-risk’ gang cases exacerbate Western Cape High Court backlog and spark concerns for those awaiting justice

“Consequently, certain matters are not finalised within the allocated time periods. Given the backlog in the criminal division, a comprehensive review was undertaken to identify appropriate measures to deal with the backlog, which we are in the process of implementing.”

It has previously been reported that a new courtroom is expected to be opened at Goodwood Prison in Cape Town this month.

Some cases could be heard there. DM

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