Justice in limbo for another year as massive rail theft case stalls

• Former PRASA acting CEO Mthuthuzeli Swartz and businessman Syed Mohiudeen were arrested in 2019 for the theft of 42km of railway line which occurred in late 2012.
• The criminal case has been beset by years of postponements, with Mohiudeen having changed lawyers three times.
• Mohiudeen’s High Court review application of a decision in the commercial crimes court was filed exactly a year ago. The criminal case cannot proceed until it is heard.

It has been a year to the day since a high court review application related to the criminal case of former PRASA acting CEO Mthuthuzeli Swartz and businessman Syed Mohiudeen who are accused of stealing 42km of railway line in the Eastern Cape, was filed in the Gqeberha High Court.

The high court application has caused the criminal case against Swartz and Mohiudeen in the Gqeberha Commercial Crimes Court, which had already been subject to years of postponements, to grind to a halt. Not only is there as yet no date set for the high court application, it has yet to be set down for hearing.

When GroundUp tried to determine when the appeal might be set down for hearing, or what was delaying the matter, we were directed to the State Attorney, who directed us to the high court, who directed us to the legal representatives (in the state’s case being the National Prosecuting Authority). The National Prosecuting Authority then directed GroundUp to the State Attorney.

While the high court review has been in limbo for a year, it has been almost 12 years since Swartz and Mohiudeen allegedly acted in concert to uplift and sell the disused Transnet railway line between Sterkstroom and Maclear in 2012.

Swartz was arrested for this theft on 22 January 2019. His arrest had taken six years to be put into effect, as the case was opened at the Elliot police station in February 2013 after Transnet security discovered the line being uplifted. During this period in which he was under investigation he was appointed acting CEO of PRASA.

Mohiudeen was arrested as co-accused on 27 February 2019. Following numerous postponements, including Mohiudeen pleading poverty due to the Covid lockdown and changing lawyers, the case finally got underway in the Commercial Crimes Court three years later, on 22 February 2022, only for Mohiudeen’s new attorney, Nasser Ally, to file a Request for Further Particulars related to the charges against Mohiudeen.

Ten months later, Magistrate Nolitha Bara dismissed the Request for Further Particulars.

In the meantime, Mohiudeen had changed his legal team for the third time, and instructed his new attorney, Aphsana Yusuph, to file the High Court application for review of the dismissal. Until finalisation of the review application, filed on 23 February 2023, the criminal case cannot proceed.

When GroundUp contacted the State Attorney’s office to ask when the appeal would be set down for hearing, head of office in Gqeberha Sibongile Tito said he recommended the court be approached for details.

High Court registrar Farouk Ahmet said: “The legal representatives are the ones responsible for setting the matter down once same is ripe for hearing.”

The National Prosecuting Authority, which represents the state’s legal representative Gerrit van der Merwe, said via spokesperson Luxolo Tyali that GroundUp should ask the State Attorney.

When Yusuph was asked when the matter would be ready to be set down in the High Court, she said she no longer acts for Mohiudeen. Yusuph said she withdrew as attorney for Mohiudeen in May 2023, and he had gone back to Ally.

Ally said he was again representing Mohiudeen, but only in the criminal matter.

“We parted ways for a bit, when I came back it was in a bit of a muddle. I’m trying to get it back on the rails,” said Ally.

He said the state had filed their answering affidavit to the review application, and Mohiudeen’s reply to the state’s answering affidavit had been filed. What remained was for the respective heads of argument to be filed. Once that happened, the appeal could be set down for hearing.

When called by GroundUp, the attorney dealing with the review application on behalf of Mohiudeen, Omar Patel, asked for the questions to be sent by email. Patel did not respond before the deadline provided.

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