The National Director of Public Prosecutions has not yet made a decision on whether or not to charge former high-profile Tongaat Hulett executives with racketeering.

This emerged on Thursday when the six appeared again before Durban Regional Court Magistrate Garth Davis.

Some of their legal representatives argued that this meant that the state was now "bound" by the charge sheet presently before the court - which details allegations of fraud relating to an alleged R3.5 billion scam involving the sale of land owned by the sugar giant - but does not contain racketeering charges.

But Davis said that issue, if it reared its head, would have to be ventilated before whichever judge presided over the eventual trial.

The accused are former Tongaat CEO Peter Staude, ex-CFO Murray Munro, former managing director of Tongaat Hulett Developments Michael Deighton, ex-Tongaat Hulett Developments planning director Rory Wilkinson, and former executives Kamlasagrie Singh and Samantha Shukla. 

Gavin Kruger, former lead partner at Deloitte, is the seventh accused. He has been charged with contravening the Auditing Professions Act.

While the state was expected to serve the indictment for them to make a first appearance in the Pietermaritzburg High Court in September, by agreement with between the state and the defence, the matter was adjourned again for them to appear on 15 July this year.

State Advocate Andre Carlitz said: "We were going to serve today but the venue for the trial, [the Pietermaritzburg High Court] might be problematic". 

"We are going to approach the Judge President to see if the matter can be transferred to the Durban High Court," he said.

TRAVEL CONCERNS
Before the matter was called, several defence advocates expressed concerns about having to travel to Pietermaritzburg every day, saying it would be a "nightmare" and result in trial delays because of traffic on the N3, roadworks, and frequent traffic backlogs caused by accidents and trucks breaking down.

"There will always be someone who is not there on time," one said.

Attorney Reeves Parsee, who represents Deighton, told Fin24 that if the trial was held in Pietermaritzburg, all seven accused, their advocates and attorneys would have to make the trip from Durban to Pietermaritzburg and back every day.

"Everyone is based in Durban," he said.

During the informal discussions, state representatives said there may not be a court big enough to accommodate the trial because the Durban High Court was being renovated and had temporarily relocated to the Durban Magistrate's Court.

The accused first appeared in court in February this year and are all out on bail.

According to the charge sheet, they are accused of acting with common purpose to commit fraud - relating to about 69 property deals - between 2015 and 2018.

It is alleged that they overstated the value of the deals in Tongaat’s financial records, and misrepresented that proper accounting procedures had been followed in determining the revenue on the deals. Some were backdated to previous financial records thereby artificially manipulating the financial reporting periods, it is alleged.

Apart from the criminal charges, Tongaat has also instituted civil claims of about R450-million against some of the accused, in an attempt to recoup monies lost through the alleged fraud.

In both the criminal and civil trials, a forensic audit report compiled by Trevor White of PwC is expected to take centre stage.