Disbarred advocate Seth Nthai has failed in his legal bid to prevent an Italian businessman, the main witness in his corruption trial - from testifying via video link from Italy.
Nthai, a former Limpopo safety and security MEC, is facing charges in the Gauteng High Court, Johannesburg, of soliciting a R5 million bribe 15 years ago.
The charges relate to Nthai, 64, demanding payment of the R5m bribe in 2009 from a group of Italian investors seeking mining rights in South Africa. He earlier pleaded not guilty to these charges.
The prosecution has meanwhile requested that businessman Mario Marcenaro, an Italian citizen, who currently resides in Italy, present his evidence by way of electronic media and/or video link.
The State has argued that this application is just and in the interest of justice as it shall prevent unreasonable delays in the case. The court was told that Marcenaro - a State witness - is willing and readily available to give evidence from Italy.
It was also said that it will save costs to the State if the witness will not physically have to be in court in Johannesburg. It was said that Marcenaro’s evidence is crucial as the case for the State stems from his evidence.
Nthai’s legal team objected to Marcenaro not physically being in court while he testified. It was argued that the accused has the right to expect a witness to be present in court to adduce and challenge his evidence.
The defence said that by allowing the State to lead evidence by way of a video link, the accused would not be able to adduce or challenge evidence, thereby affecting his right to a fair trial.
The defence has referred the court to the practice directive of this division issued in July 2022, where it is stated that criminal cases will be heard physically in court, while civil matters may be determined via video link if it is reasonable to do so.
Judge Dario Dosio, in deciding the matter, referred to a previous similar case where it was said that the right of an accused to be present in court throughout the trial and to observe his accusers and those who testify against him is a fundamentally important right and should not be lightly interfered with.
However, it was said, the Criminal Procedure Act does permit exceptions in a number of cases. “I am mindful that the interest of the accused must be borne in mind when it comes to whether or not closed-circuit television ought to be used. It must be asked whether this prejudices the accused and, if so, whether a fair balance has been struck between the various interests,” the court said.
In looking at various case law matters, Judge Dosio said: “It is clear from cases that the high courts and the Supreme Court of Appeal have held that a witness can give evidence by means of closed-circuit television or video link, especially if they are far from the court or when they are abroad.”
The State has argued that the witness is a busy businessman who travels the world and that he currently finds himself in Italy and that he only travels to South Africa when he is required to do so. At this stage, there appears to be no requirement for business purposes that he should be in South Africa.
The judge also took into consideration that in allowing the witness to testify from Italy, it will curtail the already drawn-out criminal proceedings.
The State argued that the entire case revolves around what this witness has to say as well as the exhibits that will be presented during his evidence.
“It would be efficient and practicable for the said witness to testify, especially since he currently finds himself in Italy and it appears there will be logistical and financial implications to get him to South Africa to testify.”
The judge added that to allow this witness to testify via video link will prevent unnecessary delays in ensuring that he travels to South Africa, thereby wasting more time and creating more delays in finalising the matter.
“It is clear that allowing him to testify via video link will also minimise the expenses the State will incur to pay for any flight and accommodation costs to and from South Africa. In fact, by testifying remotely, it will allow this trial to keep moving forward,” the judge said.
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Pretoria News