Rail Theft Case: Accused Juggles Lawyers, Creating Further Five-Month Delay

• Businessman Nadir Mohiudeen and former PRASA acting CEO Mthuthuzeli Swartz stand accused of fraudulently selling off 42km of railway line between Sterkstroom and Maclear in 2012.
• Mohiudeen and Swartz were arrested in 2019, but the case has been beset by delays, largely due to Mohiudeen continually switching lawyers.
• The criminal trial was also held up by Mohiudeen seeking a high court review of the magistrate’s decision not to supply him with further particulars of the charges against him.
• The trial got going in March this year, with further hearings in June scuttled due to illness. It was set to continue this week, but has been postponed to December as Mohiudeen’s newly-appointed attorney was not prepared.

The drawn out case involving the theft of 42km of railway line in the Eastern Cape by PRASA’s former Western Cape regional manager Mthuthuzeli Swartz and businessman Nadir Mohiudeen has again been delayed due to Mohiudeen juggling lawyers.

The criminal case, which has been before the Gqeberha Commercial Crimes Court for more than six years, was due to continue on Wednesday after at last getting underway in March.

The trial was also waylaid by Mohiudeen seeking a high court review of magistrate Nolitha Bara’s decision against an application that he be supplied with further particulars of the charges against him. The review application was filed in February 2023. In December last year, the high court ruled against him. In that application, he was accused of trying to use Stalingrad tactics to delay proceedings.

The state’s first witness Adrian Samuels, general manager of Durban-based company Akisisa, which uplifted the rails, was due to continue on the stand in June to be cross examined by Swartz and Mohiudeen’s lawyers after giving evidence in March. However, illness prevented the trial proceeding in June. New dates for this week – 30 July to 1 August – were given.

In the meantime, Mohiudeen had changed lawyers for the fifth time in his criminal case, returning to attorney Nasser Ally, whom he had previously ditched.

No hearing took place on Wednesday as Samuels had missed his flight to Gqeberha, according to state prosecutor Gerrit van der Merwe.

On Thursday morning, proceedings were delayed until 11am as Mohiudeen’s new advocate, Cheryl Sjoberg, was still flying in from Johannesburg. At 11am, the court heard Sjoberg’s flight was delayed, and court was adjourned until 2pm.

When court reconvened before magistrate Thabisa Mpimpilashe in the afternoon, Sjoberg asked for a postponement as she had been instructed “probably a week ago”. She said she had not received the charge sheet and other crucial documents she needed to prepare.

This was despite Van der Merwe saying he had been told three weeks ago that Mohiudeen had changed lawyers and reappointed Ally, who had then contacted him to ask for the exhibits.

“I went through them with him,” said Van der Merwe, adding that Ally had undertaken to be ready for the continuation of the trial.

“I was not informed they would be seeking a remand,” he said. “I was still under the impression we would be proceeding.”

He argued the trial should not be postponed further as there had been lengthy delays since 2019, mostly due to Mohiudeen having switched lawyers several times.

He pointed out that the court had already warned Mohiudeen twice that if his lawyers weren’t prepared because he had changed counsel, he would be forced to proceed without them, in line with Section 342A of the Criminal Procedures Act dealing with unreasonable delays.

Swartz’s advocate Mzwamadoda Mnyani did not agree to a further postponement as he said he was ready to proceed. Mnyani said the continuous delays had led him to previously apply for a separation of trials, which had been denied, and he reserved his rights to make another application.

Magistrate Mpimpilashe agreed there had been a history of delays “attributed to accused number one [Mohiudeen]”, and that one of the Section 342A warnings had been given by her.

She noted the state prosecutor had been “misled” that the case would be able to proceed and the state had spent money on airfare and accommodation for two witnesses. Samuels had also flown back to South Africa from Dubai to take the stand for cross examination.

But Mpimpilashe granted the postponement until 8 December while handing down another warning that if Mohiudeen’s lawyers weren’t ready, the trial would nonetheless proceed.

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