The Western Cape High Court has granted Nafiz Modack and Faried van der Schyff access to Kindles to prepare for their trial involving 700 charges, including VAT fraud and forgery, amid significant security considerations.
Image: File
The Western Cape High Court granted controversial businessman and alleged underworld kingpin Nafiz Modack and one of his nine co-accused, Faried van der Schyff, access to Kindles for the purpose of preparing for and for the duration of their trial.
This is so that they can access the voluminous documents related to their case, in which they face some 700 charges, including VAT fraud, forgery, and uttering.
‘Kindles’, as they are commonly known, are hand-held electronic devices that can be used for reading material which is loaded onto them, or which may be accessed by them, via the internet.
It is alleged in the indictment that between 2011 and 2015, the accused participated in a criminal enterprise under the control of Modack, which set about fraudulently claiming VAT refunds from the SA Revenue Service (SARS) via 24 corporate entities and trusts, resulting in a R46 million-plus loss to the fiscus.
Van der Schyff was allegedly responsible for administering the tax affairs of these entities and for submitting most of the VAT returns to SARS to claim refunds.
Faried van der Schyff, accused alongside Nafiz Modack, will have access to a Kindle device to facilitate his preparation for a trial involving 700 charges.
Image: File
The court directed that the devices be made available to Modack and Van der Schyff together with their covers, charging cables, and chargers, with effect from February 12, 2027.
The duo will be allowed access to the devices as they prepare for their trial under case number CC 50/2022, daily between 8 am and 9 pm from Monday to Friday, and from 8 am to 1 pm on Saturdays.
On the days when they are transported from their places of detention to the High Court for the specific case, the Kindles shall be transported in lockboxes.
Meanwhile, ahead of the trial, the devices will be held in safekeeping by the Director of Public Prosecutions (DPP), Western Cape, until February 11, 2027.
The application for access to the devices was supported by the DPP, who initially proposed providing the two with e-readers.
However, the Commissioner of the Department of Correctional Services (DCS) opposed the application due to security concerns.
Court documents detail: “In prosecuting the charges which the accused are facing (which are detailed in a draft indictment which runs to over 300 pages excluding annexures), the State will present evidence from various SARS officials as to the operation of the VAT e-filing system and several investigations which were carried out, including search and cash flow analyses.
“As part of their testimony, the State intends to present a vast quantity of documentary evidence, including corporate and VAT registration documents and returns, supplier invoices, and documents which were submitted electronically by the accused, and a trove of email correspondence. In hard form, the documents the State intends to submit comprise some 20,300 pages or so and will take up more than 60 lever arch files. In digital form, they take up some 2.3 gigabytes of data.”
On September 11, 2023, the DPP addressed a letter to the Commissioner in which she pointed out that, given the large volume of documentation which was to be supplied to the applicants, it was not practical or feasible to do so in hard form, as more than 60 lever arch files filled with documents could not reasonably be accommodated in their cells and was likely to constitute a potential security risk, at least in the form of a fire hazard.
The Commissioner opposed the application and, among other reasons, said there were “security concerns as the Kindle had Wi-Fi capability and was residually capable of connecting to the internet, should the code for the parental lock which was placed on it by officials of the NPA, be obtained or hacked”.
In his ruling and addressing the security concerns, High Court Judge Mark Sher said IT technicians who were engaged by the NPA activated parental locks on both Kindles, which rendered them unable to access the internet or to connect to any Wi-Fi network.
“In matters such as this one where a vast quantity of documentary evidence will be referred to and the presiding judge, legal representatives, and State witnesses will be making use of laptops and a courtroom monitor for the presentation of evidence, it makes no practical sense for the accused to be handicapped by compelling them to trawl their way through thousands of pages of paper, to prepare for trial, and to find hard copy documents to provide proper instructions to their legal representatives, who will be able to refer to and search for them instantly, on their laptops and other devices…
“It makes sense, and fairness dictates that where electronic means are readily available to the accused, they should also be able to use them,” said Judge Sher.
chevon.booysen@inl.co.za