- The High Court ruled that Kindle devices form part of the facilities needed to prepare a proper defence.
- Nafiz Modack and Faried van der Schyff are among nine accused facing more than 700 charges linked to an alleged R46 million VAT fraud scheme.
- Judge Sher found that fair trial rights outweighed Correctional Services' objections to the use of the devices.
Nafiz Modack and Faried van der Schyff have won a High Court application allowing them to use Kindle devices to prepare for a massive fraud and racketeering trial involving more than 700 charges and over 20 000 pages of evidence.
The High Court in the Western Cape found that denying the two accused access to the devices would place them at a disadvantage in preparing their defence and would undermine their constitutional right to a fair trial.
Modack and Van der Schyff are among nine accused who are awaiting trial on allegations that they participated in a criminal enterprise which fraudulently claimed VAT refunds from the South African Revenue Service between 2011 and 2015. According to the State, the alleged scheme involved 24 companies and trusts and caused losses of more than R46 million to the fiscus.
The State alleges that Modack controlled the enterprise while Van der Schyff was responsible for administering the tax affairs of the entities and submitting many of the VAT returns used to claim the refunds.
Thousands of documents at the heart of the dispute
The application centred on the sheer volume of evidence in the criminal case. Prosecutors intend relying on a draft indictment exceeding 300 pages as well as thousands of financial records, VAT returns, supplier invoices, corporate documents and email communications.
The court heard that the evidence amounts to more than 20 300 pages and would fill over 60 lever arch files if printed. In digital form, the material occupies approximately 2.3 gigabytes of data.
The Director of Public Prosecutions supported the application. Prosecutors argued that providing and managing such a large volume of paper documents inside correctional facilities would be impractical and that electronic devices offered a more efficient solution.
The court was told that both applicants had obtained Kindle devices at their own expense. The devices were configured by National Prosecuting Authority technicians so that they could only be used to read documents loaded onto them and could not access the internet.
Judge M Sher said, "It makes sense, and fairness dictates, that where electronic means are readily available to the accused, they should also be able to use them."
The judge added that it made little sense to force accused persons to search through thousands of paper documents while prosecutors, legal representatives and the court would all be using digital systems during the trial.
Correctional Services opposed the application
The Commissioner of Correctional Services opposed the application and argued that departmental policies restricted access to electronic devices. The department also raised concerns that the Kindles contained Wi-Fi capability and could potentially create security risks if their restrictions were bypassed.
Correctional Services further argued that hard copies of the documents could be stored in a separate room where the accused could consult them when necessary.
Judge Sher rejected those arguments. The court found that the policy relied upon by Correctional Services related to computers used by students and did not apply to Kindle devices.
The judge also accepted evidence that the devices had been locked and modified in a way that prevented internet access.
Judge Sher said, "It is the illicit access to smartphones which poses the security risk, not the possession of neutered Kindles."
Fair trial rights take priority
A central issue in the case was the constitutional right of accused persons to have adequate facilities to prepare their defence.
Judge Sher found that the concept of "facilities" extends beyond physical spaces such as consultation rooms and can include equipment that enables an accused person to effectively engage with evidence and provide instructions to legal representatives.
The judge said, "The reference to adequate facilities in Section 35(3)(b) is to be understood to include not only its traditional meaning of the necessary physical infrastructure, but also its extended meaning of a contrivance or piece of equipment."
According to the judgment, modern litigation increasingly relies on technology and courts must ensure that accused persons are not left behind as legal proceedings become more digital.
Judge Sher wrote, "Affording them the use of such a facility will improve the efficiency of the process and avoid unnecessary delays, thereby expediting the trial."
Order takes effect before trial begins
The criminal trial is scheduled to begin in April 2027. To address any security concerns, the court ordered that the Kindle devices only be made available to Modack and Van der Schyff from 12 February 2027, approximately eight weeks before the start of the trial.
Until then, the devices must remain in the safekeeping of the Western Cape Director of Public Prosecutions. Additional documents, including the final indictment and witness information, may be loaded onto the devices before they are handed over.
The court also ordered that the accused be allowed to use the Kindles daily while detained and throughout the trial. When transported to court, the devices must be carried in secure lockboxes.
Granting the application, Judge Sher concluded that the interests of justice required Kindle access for trial preparation and that the applicants were entitled to the relief they sought.
Judge Sher said, "The applicants are entitled to the relief which they seek."
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