Businessman Thoshan Panday’s R165m assets remain frozen

A provisional order restraining assets valued at R165.5m belonging to Thoshan Panday, his relatives and his businesses as potential proceeds of crime, which could be confiscated by the state should they be convicted of racketeering and other charges, has been made final.

However, a similar order against former SAPS supply chain management head Navin Madhoe and former KwaZulu-Natal police commissioner Mmamonnye Ngobeni has been capped at R47m.

Durban high court judge Peter Olsen said in his ruling this week this “might be cold comfort” to Madhoe and Ngobeni because they had argued the restraint order against them should be dismissed.

Olsen dismissed applications by the accused in the high-profile matter for variations or dismissals of the restraint order granted in favour of the national director of public prosecutions (NDPP) in March 2023.

Panday, Madhoe, Ngobeni and others are standing trial on charges of racketeering, money laundering, fraud, forgery, corruption, extortion, bribery and defeating the ends of justice. The charges relate to the award of R47m in contracts to companies owned by Panday for the procurement of accommodation for police members during the 2010 World Cup.

The provisional restraint order effectively froze all the assets of all nine accused in the trial, and at one stage Panday pleaded poverty. The matter is in the “pre-trial stage” before the Durban high court.

Panday was recently arrested on related tax fraud charges of R7.3m. After initially being denied bail, he was released from custody last week on bail of R100,000. That matter, and the main criminal matter, will be back in court on February 15.

Olsen explained a restraint order was to protect property so it was available to meet an ultimate confiscation order. He said there were two groups of defendants before him:

• the Panday defendants, comprising Panday, his personal assistant and members of his wider family; and
• the “Madhoe” defendants, Madhoe and Ngobeni.

He said the Panday defendants had not disputed the state had achieved the threshold for the grant of the provisional order.

“They concede that notwithstanding their claimed innocence, there are reasonable grounds for believing the prosecution will result in guilty verdicts. The principal relief they sought is that the order should be capped at R47m, which represents the amount of money paid by SAPS in terms of the alleged unlawful contracts,” Olsen said.

However, Capt Philip Herbst in his affidavit had described the money laundering charges, saying the money received from SAPS had been “moved around”. It was the state’s case that each amount received through the transactions constituted the proceeds of further crimes, with the effect of elevating the proceeds of all crimes in the indictment to R165m.

Olsen said the law made provision for this and dismissed the application for the variation.

Regarding the “Madhoe” defendants, they had sought an order discharging the provisional restraint order against them in its entirety. In the alternative, they sought to amend the order, reducing the amount of realisable property subject to the restraint to R89,000 (the alleged gratification Madhoe received) and about R21,000 (the alleged gratification Ngobeni received).

Olsen said Madhoe was accused of manipulating the supply chain management process to intentionally advantage Panday and his companies by eliminating any competition. This was allegedly done with criminal intent. He had received “gratifications” from Panday amounting to R89,000.

Ngobeni was accused of deliberately obstructing and seeking to put an end to an investigation into the corrupt award of the tender. In her case she received a gratification of about R21,000 — when Panday paid for her husband’s surprise birthday party.

Olsen said their responses to the allegations “amounted to little more than bare denials” and their explanations for the “gratifications” were “ insubstantial and weak”. However, he said the contention they were involved in money laundering “while it may reasonably possibly be true” was not supported by the available evidence.

“The transactions giving rise to the money-laundering charges involved the Panday parties,” said Olsen.

“It is a central feature of the NDPP's argument that the money-laundering activities themselves generate separate identifiable proceeds of crime and there is a clear distinction between what might be termed the primary crimes generating the sum of R47m and the subsequent crimes of money laundering which lift the restraint claimed to R165m.

“Though it might be cold comfort to them, in my view in the case of the Madhoe parties, the base sum under restraint should be R47m and not R165m.”

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