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Thoshen Panday. (File Photo: The Witness / Wikipedia)
Ten years after police began investigating fraud and corruption related to a 55 million rand contract for official accommodation during the 2010 FIFA World Cup, Durban-based businessman Thoshan Panday will finally face A judgment.
Despite an epic battle that sparked three cases involving attempts to derail the investigation, bribe a Hawks colonel and fraudulently obtain frozen funds, the Pietermaritzburg High Court upheld a 2017 decision by the former Authority head on Wednesday. National Prosecutor Shaun Abrahams that the prosecution of Thoshan Panday should go ahead.
Panday has been linked to former President Jacob Zuma’s son, Edward Zuma, which has earned the businessman a reputation for being “untouchable.”
Retired Hawks colonel Johannes van Loggerenberg testified at the Zondo Commission in early 2020 on allegations of fraud and corruption.
The initial investigation, known as CAS 781, was described by Judge Trevor Gorvan as “anything but [smooth]”.
Three cases derived from the investigation were born: one, CAS 386, for interfering with a police investigation and another, known as CAS 466, for trying to bribe the former provincial head of the Hawks in KwaZulu-Natal, Colonel Johan Booysen. , with 1.43 million rand.
The third, CAS122, was for fraud and was opened after it was alleged that Panday had attempted to have funds, apparently owed to him in terms of the contracts that were the subject of CAS781, thawed and paid.
The four cases were also initially dropped after a decision by local prosecutors and confirmed by the provincial deputy director of the prosecution, Moipone Noko.
The cases were then reviewed by Abrahams, who issued decisions to prosecute.
The Pietermaritzburg High Court was asked to deal only with a review of Abrahams’ decision to prosecute Panday in CAS781, which was related to corruption and fraud in the accommodation contract.
In a timeline of events, included in his trial, Gorvan followed the long and winding road to Panday’s trial.
A brigadier working in the financial services division at SAPS headquarters in KwaZulu-Natal first noticed a payment of 55 million rand for the accommodation of police officers during the 2010 World Cup. He had noted that it was I had used a single broker on a listing and that Goldcoast Trading CC was the beneficiary of the contract.
“It also appeared that the bills had been substantially inflated relative to the actual cost of the accommodation,” Gorvan wrote.
He added that a subsequent investigation showed that the bills for the accommodation had been divided into amounts less than 200,000 rand, which would not normally lead to the need to follow full procurement procedures.
It was also alleged that the SAPS provincial supply chain manager, Colonel Navin Madhoe, received payments from Panday.
The investigation that followed included the issuance of several subpoenas that were later unsuccessfully challenged in court.
According to court documents, the subpoenas yielded a “trove of statements” supporting the allegations of payments made to Madhoe.
Other search warrants also led to the seizure of documents that were analyzed by PwC forensic auditors. The PwC report “supported the allegations of fraud and corruption.”
On October 12, 2010, one of the investigating officers was threatened. This was relayed to the criminal intelligence unit of the police. This led, in turn, to intelligence agents obtaining permission from a judge to intercept Panday’s communications from November 15, 2010, to November 29, 2011.
Gorvan explained that the evidence obtained during this time led to the opening of CAS 466, the attempt to bribe Booysen, but none of the evidence was relevant in CAS 781.
The prosecutor who first issued a decision not to prosecute in this case against Panday, Abby Letsholo, and the provincial deputy director of public prosecution, Moipone Noko, who confirmed this decision, received some harsh criticism from Gorvan.
Before the case was handed over to Letsholo, another prosecutor who had dealt with the matter described it as a “straightforward forensic investigation” that did not involve the intercepted conversations.
Letsholo, however, used the intercepted conversations as a reason not to prosecute Panday for CAS 781.
Gorvan said that first, by a decision not to prosecute Panday due to the interception, he indicated that Letsholo had the “wrong impression” that the intercepted material was obtained improperly.
Later, Letsholo justified his decision by saying that the judge who authorized the interception “must have been misled.”
Gorvan then discovered that Letsholo “was literally taking the word of a suspect … a suspect who allegedly tried to have the charges against him dropped by illegal means.”
Panday claimed in court documents that the police had threatened to derail his trial strategy after they heard him discussing CAS 781 with his lawyer.
The National Prosecutor’s Office denied it in court documents. The court determined that Panday’s statements were the least likely of the two to be true.
Gorvan added that in his memoranda justifying the decision not to prosecute Panday, Letsholo did not address the actual evidence in CAS 781. Gorvan said Noko later supported the “clearly flawed memoranda” and confirmed the decision not to prosecute.
Describing the amount of paperwork generated by the case, Gorvan said that Panday first made written statements on February 14, 2014.
On March 25, 2014, Letsholo wrote a six-page memo explaining why Panday should not be prosecuted. On October 10, 2014, Noko wrote a seven-page memorandum in which he refused to prosecute the case involving Booysen, CAS 466, but in it he referred to CAS 781.
Clearly angered by the decision not to prosecute at CAS 781, the Independent Police Directorate of Investigations wrote a 27-page memorandum to Noko requesting a review of the evidence, including the forensic report.
On October 9, 2015, Letsholo again refused to prosecute at CAS 781. The decision was confirmed by another prosecutor in a one-page memo on October 28, 2015.
On October 29, 2015, Noko wrote to Abrahams, also confirming their agreement not to process at CAS 781.
On May 9, 2016, the then deputy director of public prosecution, Nomgcobo Jiba, wrote to Abrahams telling him that she recommended prosecution in both CAS 781 and CAS 466. She described the evidence as overwhelming and “prima facie.”
On October 2, 2016, Abrahams asked Panday to do performances. He received them a year later, on October 9, 2017. A month later, another senior prosecutor also recommended that Panday be prosecuted by CAS 781.
Abrahams finally issued his notice that Panday should be prosecuted on November 27, 2017.
It said its memos ignored a 400-page PwC report.
“To say that Panday does not appear anywhere in CAS 781 begs the belief,” Gorvan said.
He said that all the material presented to Abrahams when he decided to review the decision “showed the lack of rationality of the reasons provided by Letsholo and Noko for the decision not to prosecute.”
Gorvan said that “the independence of the prosecution was a hallmark of the separation of powers … and that the courts rarely interfere.”
Whether the evidence presented before Abrahams was sufficient for a conviction is a matter for the trial court to decide, Gorvan concluded. DM
