Zunaid Moti’s former legal adviser Clinton van Niekerk, who the businessman accuses of stealing sensitive files from his companies, is in witness protection and co-operating with the Hawks, “who have taken the information in his possession and the threat to his life, seriously”.
This is according to Van Niekerk’s mother, Karen Botha, who has deposed to an affidavit opposing a bid by Moti to overturn a Durban high court order which effectively set aside a warrant for his arrest and resulted in him being freed from police custody.
Van Niekerk, who was employed by one of the 250 companies in the Moti Group, resigned in November last year.
Moti alleges this was after he downloaded thousands of files from the group’s OneDrive document storage system while on sick leave, just before his resignation.
Van Niekerk was arrested at Durban’s King Shaka Airport as he was about to board an international flight on January 26 this year, apparently fearing for his life.
His lawyers made an urgent ex parte application before acting judge Warren Shapiro, securing an order that he remain in cells at Verulam, protected from police in Johannesburg who were said to allegedly be in Moti’s pocket.
However, when the order was served at the local police station, Van Niekerk had already left with the investigating officer.
The next day, the order was made final and the case struck from the roll in the Randburg magistrate's court.
A director of one of Moti’s companies, David Willoughby, has now launched an urgent application in the Durban high court, to be heard on Wednesday, in which he wants Shapiro’s “unlawful” orders set aside.
Willoughby says Van Niekerk remains a flight risk and that since his unconditional release, the group’s attorneys and forensic examiner Paul O’Sullivan had met with police and prosecutors to discuss the way forward.
Randburg senior public prosecutor Petrus Skhosana had said, given the order granted by judge Shapiro, a new warrant could not be issued without the say-so of the provincial director of public prosecutions Andrew Chauke.
While this was being pursued, Willoughby said “in the interim we simply cannot wait in the hope that this matter will be resolved with the intervention of a court and with every day that passes, there is more risk that Van Niekerk will flee”.
Botha, in her affidavit filed on behalf of her son, said judge Shapiro’s order was the “necessary result of judicial oversight which eventually halted the continuation of an extreme and outrageous injustice”.
“More recent developments — Clinton having gone into witness protection under the Witness Protection Act — would indicate that the criminal charges are nothing less than an attempt to crush a criminal investigation in which Clinton is a material witness,” she said.
“The inescapable inference is that the charges against Clinton are an attempt to silence a material witness in a criminal investigation by manufacturing dubious charges and thus defeat the ends of justice ... allowing the applicant to abuse the criminal process to avoid their own prosecution.”
Botha has, in particular, flagged a phone call her son received from O’Sullivan which he recorded and which has been transcribed. In it, O’Sullivan talks of a criminal docket being “more or less finalised” — and that there was a “whole lot of trouble coming his way”. He says “it can be avoided, if you come and see me and have a discussion”.
Botha said this amounted to extortion and defeating the ends of justice.
She has also questioned the timing of the call — January 17 — casting doubt on assertions that the docket had been opened in November 2022.
She said the warrant of arrest on which Van Niekerk was detained was flawed because it was granted for the offence of “fraud”, not for “theft of information”, the offence on which the warrant was sought. This, she said, was evidence that the unnamed magistrate simply rubber-stamped the warrant.
Since his release and “mindful of the very real threat to his life”, Botha said contact had been made with the Hawks.
The attorney acting for Van Niekerk, Stephen May, also sent a letter to Skhosana 10 days before he met Moti’s legal representatives and O’Sullivan. In spite of this, May was not informed of the meeting.
At that stage Skhosana was aware — and the applicants must have been aware but have failed to disclose it — that Van Niekerk was a material witness in an investigation against Moti which would explain his reticence to apply for a new warrant.
Botha said it was likely her son was unaware of the pending application and could not protect his interests.
Former cage fighter turned businessman Frikkie Lutzkie, who testified before judge Shapiro in the urgent application after Van Niekerk's arrest, contending Van Niekerk’s life was in danger, is also opposing the application.
Lutzkie is embroiled in legal battles with Moti over business deals. He says he became involved in Van Niekerk’s matter in the “interests of justice” and to ensure he was safe.
He said the application was an attempt to usurp the powers of the SAPS and NPA, which had not opposed the applications before judge Shapiro nor challenged his orders.
He said apart from Van Niekerk being in witness protection, he was also “red flagged” by the department of home affairs, which prevented him from leaving the country. He was thus not a flight risk.
Botha and Lutzkie say Moti can take civil action against Van Niekerk for the return of any documents they believe he has.
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