Railway line theft accused using ‘Stalingrad tactics’, court hears in review application

By Steve Kretzmann and Joseph Chirume

12 Aug 2024

Decision on High Court review brought by businessman Syed Mohiudeen postponed.

A review application related to a criminal case in which a former acting Passenger Rail Agency of South Africa (Prasa) CEO and a Cape Town businessman allegedly stole 42km of railway line in the Eastern Cape, was postponed in the Eastern Cape Division of the High Court in Gqeberha on Thursday.

This was the first time the review application, brought by Syed Mohiudeen, had been heard, 18 months after the notice of motion was filed at the High Court in February 2023.

Mohiudeen is co-accused with Mthuthuzeli Swartz, who was Prasa’s Western Cape regional director when a case of the theft of a Transnet railway line between Sterkstroom and Maclear was opened at the Elliot police station in the Eastern Cape in February 2013.

It took six years before Swartz was arrested on 22 January 2019, with Mohiudeen arrested on 27 February 2019.

It is alleged that Swartz and Mohiudeen, acting through his company Spanish Ice, took a R1.5-million deposit from Cape Town cousins Adrian and Cedric Samuels for the sale of the disused Transnet railway line, which the Samuels cousins then uplifted for its steel value.

In the period between the case being opened and Swartz’s arrest, Prasa appointed him as acting CEO. He served in this position for three months, from January to April 2018, until the Prasa board removed him because insurers wouldn’t provide directors’ and officers’ liability cover.

The criminal case, which itself was beset with delays prior to the review application, partly due to Mohiudeen changing lawyers and difficulty in obtaining court transcripts, ground to a halt after Mohiudeen filed an application for the High Court to review magistrate Nolitha Bara’s dismissal of his request for further particulars of the charges against him. He is also contesting the R58-million claimed in damages to Transnet as result of the line being uplifted.

Mohiudeen’s heads of argument, which he on Thursday told the court that his niece in London had helped him draft, were filed on 3 June this year.

Responding papers

Appearing before Judge Avinash Govindjee and Acting Judge Nicholas Mullins in the High Court on Thursday, Mohiudeen asked for a postponement so he could obtain legal representation. He said he had only received the State’s responding papers that morning. Since the start of his criminal case, Mohiudeen has changed lawyers at least four times, with his latest attempt to obtain legal representation from Legal Aid turned down.

Mohiudeen said Legal Aid had informed him of its decision on 1 August, at which point Judge Govindjee noted the reason was that Legal Aid deemed his application had “no real prospects of success”.

Advocate Bongo Mvinjelwa, for the State, argued that a postponement would further delay the criminal proceedings in the Commercial Crimes Court, which would “prejudice the State”.

Mvinjelwa said Mohiudeen had legal representation when he made the High Court application, and the matter was covered in the heads of argument before the court.

He said there was no merit in Mohiudeen’s application, and that he was using “Stalingrad tactics” to delay the criminal proceedings.

After a 15-minute adjournment, Judge Govindjee ruled that despite “suspicions of Stalingrad tactics”, the matter would be postponed. Although the State’s responding papers were sent to the Legal Aid Board on 23 July, it appeared they had not been forwarded to Mohiudeen until after the Legal Aid Board’s decision to turn down his request for representation, and he needed time to familiarise himself with the legal arguments.

New date for the hearing

A new date for the hearing was obtained for 28 November.

Outside court, Mohiudeen said he had been accused of something that he had not done. He said he did not expect not to have legal representation in court.

“I’ve been railroaded,” he said. “The Samuels are the ones who stole the rail, and who got permission from Swartz,” he said, adding: “I can’t plead without the right information.”

He said the Apartheid Criminal Procedures Act was being used against him and it was a “trial by media” that had ruined his reputation. DM

First published by GroundUp.

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Responding papers

New date for the hearing