Durban businessman Thoshan Panday, former KwaZulu-Natal police commissioner Mmamonnye Ngobeni and others accused of alleged graft relating to a SAPS accommodation tender for the 2010 Soccer World Cup are fighting an attempt by the state to restrain any of their assets worth a total R165m, saying they are broke and desperate.
A provisional restraint order was granted in the Durban high court in March, giving a curator sanction to “restrain” their assets.
When the matter returned to court on Monday, the state wanted the restraint order to be confirmed, but lawyers for those affected, including Col Navin Madhoe, the former head of acquisitions in supply chain management, Capt Ashwin Narainpershad, of the same unit, and relatives of Panday, including his mother, brother-in-law, sister and his professional assistant, said they would be applying for a variation of the order.
Judge Rashid Vahed described the papers in the matter as a “jumbled mess, standing two feet high in my chambers”.
He said they could not be brought into court and he had not had a chance to read them.
After directing the parties to go outside to talk, the matter was adjourned, without a date, with agreed dates for the further filing of papers.
In his first report to the court, curator Sean Chistensen says he has restrained, among others, assets valued at:
- R3.7m from Madhoe;
- R43,560 from Narainpershad;
- R2.5m from Ngobeni;
- R3.5m million from her husband Lucas Ngobeni;
- R217,000 from Panday personally;
- R18m from a family trust; and
- about R60m from entities linked to him and his relatives.
Most of the assets are policies, properties, bank accounts and vehicles.
In his affidavit, opposing the asset forfeiture application, Panday says while he and his co-applicants do not oppose the granting of a final restraint order, “due to the low threshold of proof required by the national director of public prosecutions” in such matters, they wanted to vary it where it “deprives us of our reasonable living expenses and causes undue hardship”.
He said a restraint order of R165.5m was “out of proportion” with any confiscation order the NDPP could ultimately obtain and it should not exceed the R47m that represented the sum of what could be termed “proceeds of unlawful activities” (and the amount involved in the charges on the indictment).
Panday said the criminal charges dated back 13 years and the NDPP had taken a “belated decision” to charge the accused in October 2020 when the charges had previously been withdrawn.
The trial was still in the “pretrial discovery phase”.
“No reason has been given by the NDPP for the belated decision to launch this restraint application ... there is equally no explanation for why it was brought on an urgent and ex parte basis, given that the charges and the alleged benefits sought to be ultimately confiscated date back to 2010.”
The long-term effect of the order if it is made final in its present form, will be even more devastating.
— Thoshan Panday, Durban businessman
Panday said it was highly unlikely the trial itself would commence this year, and when it did begin, it would be extremely lengthy — “a marathon trial” — meaning the restraint order could remain in effect for years.
“The restraint order has already had a crippling effect on us as we simply do not have property anywhere near this value to surrender.
“The restraint order in its present form has not only removed all of our assets and income but is stifling the means by which we provide our day-to-day living expenses and those of our dependents,” he said.
Pandy said this had left them financially destitute and reliant on the curator, “who at this stage is marching to the tune of the NDPP, who is unfortunately adopting an obstructive approach designed to ruin us financially”.
“The long-term effect of the order if it is made final in its present form, will be even more devastating.”
He said the NDPP and the curator had insisted they bring substantive applications for reasonable living and legal expenses. “This was duly done, only to be met with total opposition and absurdly frugal offers ... excluding items like reasonable gym fees and my wife’s vehicle, which she uses to transport our child to school.
“Since the execution of the order on May 2 2023, we have been left without any income and have been denied access to all our banking facilities,” he said, saying they were in a “desperate situation”.
He said that application (for reasonable living expenses) stood adjourned for the NDPP to file an opposition affidavit.
Ngobeni, her husband and the other accused are expected to bring similar applications.
Panday said there was also no allegation that he and his co-accused had engaged in any unlawful activities since 2010, which meant the bulk of the restraint order must be satisfied from “our legitimately owned and acquired assets”.
He said the basis for the NDPP’s restraint of the sum of R165m was that it had “deliberately and designedly multiplied the payment by SAPS of R47.3m several times” when this was the final amount paid under the contract and neither he nor his co-accused could be convicted in the criminal matter of any crime exceeding that value.
He said this was in spite of courts, including the Supreme Court of Appeal, holding that restraint orders should not materially exceed the amount of an anticipated confiscation order.
He said his attorneys had written a comprehensive letter to the NDPP to address the unfairness of the restraint order. But the response had been “dismissive”, and he therefore had no choice but to approach the court for a variation of the order.
In the criminal matter, the indictment alleges the three police officials circumvented procurement processes to give Panday’s Goldcoast Trading 80% of the World Cup accommodation contracts. It is alleged he misrepresented that Goldcoast had secured block bookings in 2008, which was false, then placed police members in venues, paid them a low rate and claimed the inflated rates from SAPS.
In return for the contracts, it is alleged Panday gifted Madhoe accommodation at the Oyster Box Hotel and paid for him and his family to fly to Cape Town and for their accommodation at a cost of R89,000.
It is alleged that Panday paid R43,500 in Varsity College fees for Narainpershad’s son, bought him a Trojan treadmill for R7,000 and paid for his accommodation at two hotels, amounting to almost R60,000.
Panday allegedly also paid about R21,000 for a “surprise birthday party” for Ngobeni’s husband, Brig Lucas Ngobeni.
Ngobeni is also charged with obstructing or attempting to defeat the course of justice when she allegedly instructed Brig Laurence Kemp, the head of provincial financial expenditure, and then KZN Hawks boss Johan Booysen to stop an investigation into the alleged procurement fraud.
Madhoe and Panday are also charged with corruption in relation to offering Booysen R2m to change a date on a document so it would seem as if that information had been obtained before subpoenas were obtained.
They are also charged with attempting to extort Booysen to predate the report by showing him photographs that would allegedly implicate him in the so called “Cato Manor killings”, threatening they would be used against him unless he complied with their demand.
The accused have yet to plead to the 237 charges and will appear in court again in August.
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