A notably subdued Mmamonnye Ngobeni entered the dock of the Durban Magistrates’ Court on Wednesday and took a place beside her equally sombre co-accused – connected Umhlanga businessman Thoshan Panday and former policemen, Aswin Narainpershad and Navin Madhoe.
Ngobeni’s demeanour was in stark contrast to her first appearance in October for the high-profile graft case, when she flitted into the courtroom and engaged in niceties with journalists, giggling and posing for photos.
On Wednesday, a deep frown had found a home above her nose, her arms were tightly crossed, and she shifted her weight from one foot to the other, staring ahead, possibly because as a former police officer, she knows the seriousness of the racketeering charges the State is seeking to bring in the case.
The matter was postponed in October so that the State could serve its indictment and dockets on the accused on Wednesday, but prosecutor Talitha Louw told Magistrate Vanitha Armu that while the dockets were ready, the indictment was not yet finalised.
“We were hoping to serve the indictment on the accused before the court transfers them to the high court, however, since [the last appearance] we have applied to the national director [of public prosecutions] for a racketeering authorisation.”
Louw said she was seeking a postponement for two reasons – firstly, because of a letter that former KZN prosecutions head, Moipone Noko, had addressed to national prosecutions head, Shamila Batohi.
“Certain submissions were made in the letter… or correspondence… and we were requested to answer to certain submissions. Further, I was given the nolle certificate mentioned to this court on the last occasion, only on Monday.”
Noko issued the nolle prosequi certificate (decision not to prosecute) in 2014, indicating Ngobeni would not be prosecuted for the alleged bribe she took from Panday. That allegedly came in the form of a R26 000 birthday party for her husband – also a high-ranking police officer at the time, at a swanky Umhlanga venue.
Continued Louw: “The State is thus seeking a postponement, your worship, so that these aspects can be fully dealt with by [Batohi], because she makes the final decision to sign the indictment. Your worship, I cannot serve the provisional indictment without the racketeering authorisation.”
Acting for Panday, Jimmy Howse (SC) told the court that Louw had missed out on “a serious ground” for which she was seeking a postponement, “and that is that the State proposes introducing further accused in the matter, and before they do that, they are awaiting the racketeering certificate”.
He asked if Louw was willing to comment on the matter, but the plucky, quick-talking prosecutor would not share, saying instead that it would be premature. “I need authorisation before I can act, anyway.”
Arguably one of the top criminal advocates in KwaZulu-Natal, Howse is often retained for high-profile, messy cases. Although appearing mild-mannered, his tongue is cutting, and he does not suffer fools – be they in the form of prosecutors or judges.
You have had nine to 10 years to ponder on all of this and get a result, and yet you don’t.
He told the court he would “strongly oppose” an adjournment. The State had had “nine to 10 years” to investigate the matter, he said, adding that investigations should be done first, as far as possible, “and the rest should follow”.
“The reason for this is to obviate prejudice for the accused. What this case starkly illustrates, is that that has not been done.”
The indictment and racketeering certificates should have been in order prior to placing the accused before court, he said.
“You have had nine to 10 years to ponder on all of this and get a result, and yet you don’t,” he told Louw.
Directing his gaze to Magistrate Armu, Howse said the State had not offered a factual basis for seeking the postponement; Louw had merely mentioned correspondence between Noko and Batohi, but had not added any substance.
“Until we know what is raised in this letter by advocate Noko, we don’t know whether the adjournment is merited or not. It may absolutely have no merit, it may simply be a ploy for time.”
Any adjournment would be of detriment to his client, said Howse, and scolded Louw for the State’s inability to “get its house in order”.
He said the defence had asked for the letter, and were “told it was being suppressed”.
Louw reacted immediately to the statement. “May I just object, that was not what was said,” she shot back sharply.
“I indicated to my learned friend that it is an internal memo, it was not a public document, it was not sent to anybody. Your worship, we were addressed by the national director on certain aspects that were mentioned, certain submissions that were made in this letter, that is relevant to our case [sic].
“I do not know what the content of this whole document is, your worship, I was only asked to respond to certain statements and questions that had aspects that had impact….”
Panday, Madhoe and Narainpershad are facing 230 counts of fraud and corruption totalling R60-million relating to temporary police accommodation and other services for the 2010 Fifa World Cup.
Madhoe has also been accused of trying to bribe former KZN Hawks head Johan Booysen, in 2011, with cash allegedly supplied by Panday. Booysen was investigating the accommodation and other services offered by Panday at the time.
Ngobeni is accused of being an accessory after the fact – she allegedly tried to stifle Booysen’s investigation.
On 27 October, Noko – now the provincial head of prosecutions in the North West – sent a 57-page letter addressed to “all NPA colleagues” that explained the rationale behind several of her decisions, which she said had led to her being “insulted” and “called names”. Among them was the 2011 case against Panday and Madhoe.
The letter was leaked to the press.
Both accused… were persistently asked to falsely implicate the provincial commissioner with a promise of a reward in the form of them being let go on their criminal cases, with Panday also getting his money that the SAPS withheld, paid out to him and also offered protection in return.
In it, Noko said her “main issue” with the case, which led to her withdrawing it, was the manner in which it was handled by the police.
She said that a “gross disregard of justice and fairness” had been exhibited, which she viewed as “intentional injustice”. Noko said she felt scores were being settled in the matter and that the NPA was being “used”.
“Both accused… were persistently asked to falsely implicate the provincial commissioner with a promise of a reward in the form of them being let go on their criminal cases, with Panday also getting his money that the SAPS withheld, paid out to him and also offered protection in return.”
Noko said Booysen’s behaviour “played a far too-active role than it was proper, fair and just for a complainant to play in their own case”.
She instead accepted Panday’s counter accusation that Booysen was attempting to push out Ngobeni in order to become “the next KZN SAPS provincial commissioner”, and accepted Panday’s allegations of alleged racial slander by Booysen against Ngobeni.
Continuing in court, Howse said there was substantial pressure on the investigating directorate to prosecute high-profile cases, and that as a consequence, the case had been “rushed” and the accused had suffered obvious prejudice.
Attorney Ravindra Maniklall, acting for Ngobeni and Madhoe, said that his clients had also suffered prejudice, with it being “incalculable” for Ngobeni.
Madhoe had suffered “extreme prejudice” financially, he said, adding that the former colonel had to resign from his post because of the publicity surrounding the case, and was subsequently unemployed.
“Not enough grounds have been set out for a postponement. The court must not consider it,” he said.
Waiting for a racketeering certificate would very likely delay proceedings again, which would further prejudice his clients, he said, making it clear that the racketeering charges would be challenged by the defence teams.
Acting for Narainpershad, who entered the courtroom in a wheelchair and his foot bandaged, attorney Bilal Malani said an adjournment would not be in the interests of justice.
Malani said his client had “severe tophaceous gout” and only “came out of surgery” last week. Narainpershad was dealing with treatment costs and the costs of an attorney, he said.
The magistrate called a short recess, after which she said the matter would indeed be adjourned, with the date eventually set for December 17.
“The State is not asking for an adjournment for further investigation, but for a racketeering certificate. The adjournment is granted because it is the first that has been sought,” she said. DM