State's case goes up in smoke after couple arrested for cigarette theft

State prosecutors have been lashed by a Supreme Court of Appeal judge for six years of “delays and dishonesty” in prosecuting a couple accused of stealing cigarettes worth R5-million.

Judge Mahomed Navsa granted an application by 60-year-old Pienaar and Anthea van Heerden‚ of Oudtshoorn in the Western Cape‚ that their prosecution must be abandoned‚ saying the conduct of the National Director of Public Prosecutions had violated their right to a fair trial.

Navsa also ordered that all the couple’s property — worth R2.1-million when it was attached under the Prevention of Organised Crime Act in 2011 — be returned to them‚ after hearing evidence that they were relying on church food handouts to survive.

He acknowledged that the court order the Van Heerdens had applied for was “extraordinary”‚ but said the “dishonest and unacceptable conduct of the State ... cannot go unnoticed”.

The couple both worked for British American Tobacco’s giant cigarette factory in Heidelberg‚ Gauteng‚ when they were accused of theft and fired early in 2010.

After being arrested in August 2011 and held in custody for three days‚ they appeared in Cape Town Magistrate’s Court‚ charged with stealing hundreds of boxes of cigarettes worth R5-million.

In his judgment on Monday‚ Navsa described 18 further court appearances in the next four years‚ culminating in the case being struck off the roll by a magistrate at Khayelitsha Regional Court in September 2015.

“More than three-and-a-half years after the arrest the State was still attempting to finalise a charge sheet‚” said Navsa.

In December 2015‚ the Van Heerdens applied to the High Court in Cape Town for a permanent stay of prosecution‚ and appealed after losing.

Granting their appeal‚ Navsa said: “The State was irresponsibly lax in investigating the case ... and moving forward with a prosecution. Substantial and material parts of the delays were occasioned by the inertia and vacillation of the prosecutors.

“At the heart of case are the contentions that due to the very many delays and the paucity of information supplied by the State ... they have in effect been denied a fair trial.”

Speaking to TimesLIVE‚ Pienaar van Heerden said he did not want to comment because he and his wife wanted to put the six-year legal ordeal behind them. The NDPP was ordered to pay the couple’s legal costs in the Supreme Court of Appeal case. Their cumulative legal costs amount to R470‚000.

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