The state had argued, before the magistrate and in the high court, there was evidence Panday had previously disregarded his bail conditions after his passport was returned to him to allow him to travel for business to Istanbul and Turkey, and to apply for visas for a leisure trip to Europe. Instead he travelled to the US and used a passport which he had previously reported as lost.
He was directed, in terms of an order granted by judge Sharmaine Balton in October 2022, to return his passport to the investigating officer within five days of his return to South Africa in January 2023.
Steyn said Panday conceded the order stipulated where he could travel to and he did not return his passport. It was argued in the bail hearing he “merely deviated” from his intended travel plans and was not a flight risk.
However, Steyn noted an affidavit deposed by Col Phillip Herbst in which he stated Panday had, as part of his bail conditions (in the racketeering matter), surrendered only one passport. He had stated under oath his other passport had been “lost”. It was in the custody of a travel agency which shut down after the Covid-19 lockdown.
He reported the loss to home affairs and had obtained a new passport, which he did not disclose to the state. He used this passport and the “lost passport” to travel to and around the US.
Thoshan Panday to remain behind bars
Durban businessman Thoshan Panday, arrested on charges of tax fraud, will remain behind bars after he failed in his appeal against a magistrate’s order denying him bail.
Panday is facing separate charges, for which he was granted bail, in a racketeering, fraud and corruption case together with former KwaZulu-Natal police commissioner Mmamonnye Ngobeni relating to contracts his firm was awarded by the police service for accommodation during the 2010 World Cup.
He was arrested in early September on the new tax-related charges and has been in custody ever since after a magistrate refused to grant him bail.
He appealed the decision in the high court, but on Monday judge Esther Steyn ruled against him.
In her ruling Steyn said the state alleges he made misrepresentations to the South African Revenue Service (Sars) aimed at either evading tax, assisting others to evade tax, or obtaining undue tax returns. The actual and potential prejudice to Sars was more than R7.5m.
Steyn said the offences fell under a schedule which required Panday to show it was in the interests of justice he be released on bail.
The state had argued, before the magistrate and in the high court, there was evidence Panday had previously disregarded his bail conditions after his passport was returned to him to allow him to travel for business to Istanbul and Turkey, and to apply for visas for a leisure trip to Europe. Instead he travelled to the US and used a passport which he had previously reported as lost.
He was directed, in terms of an order granted by judge Sharmaine Balton in October 2022, to return his passport to the investigating officer within five days of his return to South Africa in January 2023.
Steyn said Panday conceded the order stipulated where he could travel to and he did not return his passport. It was argued in the bail hearing he “merely deviated” from his intended travel plans and was not a flight risk.
However, Steyn noted an affidavit deposed by Col Phillip Herbst in which he stated Panday had, as part of his bail conditions (in the racketeering matter), surrendered only one passport. He had stated under oath his other passport had been “lost”. It was in the custody of a travel agency which shut down after the Covid-19 lockdown.
He reported the loss to home affairs and had obtained a new passport, which he did not disclose to the state. He used this passport and the “lost passport” to travel to and around the US.
Steyn said the magistrate hearing the initial bail application had concluded Panday was a flight risk. She said Panday has not explained how he came to have many passports “and this most certainly tipped the scale in favour of him posing a flight risk”.
In his ruling the magistrate had said Panday was in breach of his bail conditions. He had not disclosed he had other passports and he had means and “financial strength” to leave the country.
“It was submitted the magistrate was wrong in finding [Panday] had the means to leave the country. This must be measured against the evidence placed before the court which could not be ignored,” Steyn said.
This was evidence obtained under subpoena from Harvey’s Travel that tickets were issued to Panday and others to travel from Dubai to San Francisco, and domestic flights to other destinations at a cost of R2.1m.
“I fail to see how the magistrate was wrong to conclude he has means to leave the country. [Panday] filed an affidavit of 19 pages but is silent on the use of different passports and the non-adherence to the bail conditions which specified he would travel to Europe.”
Steyn said the magistrate had considered all the applicable legal principles pertaining to bail and dismissed the appeal.
Panday will appear in the high court on the tax charges later this month.
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