In what is believed to be an unprecedented case, a former employee of the Moti Group, who is now in witness protection, appeared virtually in court from an undisclosed location to face charges of stealing thousands of computer files from the group, before he resigned in late 2022.
However, the matter was struck from the roll because there was no proper service of the summons.
The hearing took place at the Randburg magistrate’s court on Thursday after Clinton van Niekerk’s lawyers successfully secured an order, late on Sunday night, blocking an attempt to force him out of witness protection to be processed at a police station and then charged.
In that application, Van Niekerk’s attorney Stephen May said this would place his client in extreme danger. He claimed representatives of the Moti Group had been trying for more than two years to find out where Van Niekerk was being held.
Zunaid Moti, the owner of the group, claims van Niekerk “stole the information” and passed it on to a business rival and the amaBhungane Centre for Investigative Journalism, which then ran a series of articles based on the information.
It accuses him of being a thief, not a whistle-blower. At one stage in court papers, it also claimed that Van Niekerk was not in witness protection but “in hiding”.
May, in his affidavit which came before Johannesburg high court acting judge Stephens Thobane, said his client would stand trial and prove his innocence. But he wanted access to the warrant, the statement which had been placed before the magistrate who signed it, and he wanted to keep his client safe.
“The mere fact of moving him places carries a risk to his life and limb.”
May said Van Niekerk, now 31, had been placed in witness protection because he would give evidence in a criminal investigation into alleged corrupt and fraudulent activities at the Moti Group.
Van Niekerk had gone into witness protection in February 2023 after being arrested on charges laid against him by the Moti Group.
That arrest was deemed unlawful and he was released. The Moti Group also secured a “gagging” order against amaBhungane from using any of the “stolen” information and continuing to publish a series of articles labelled #MotiFiles. The extraordinary “secret” application was made in chambers, without notice to amaBhungane. Soon after it was set aside by another judge who labelled it an “egregious abuse”.
It’s regrettable that this matter is being pursued at this stage at all ... It smacks of irrationality and the wrong driving motivations behind it
— Stephen May, attorney for Clinton van Niekerk
Van Niekerk was first arrested in January 2023 as he was about to board an international flight at Durban’s King Shaka Airport.
In spite of a court order by Durban high court acting judge Warren Shapiro that he not be removed from KwaZulu-Natal, he was transported to Gauteng. As he waited to appear in the Randburg magistrate’s court Shapiro issued an order cancelling the warrant and van Niekerk was released.
At that stage he was facing charges of theft of information. The warrant was signed in January 2023.
The new warrant, signed a month later in February 2023 seemingly by the same magistrate, now alleges contraventions of the Cyber Crimes Act.
The charge sheet — which is littered with handwritten alterations — alleges Van Niekerk was a legal adviser at Mazetti Management Services (which forms part of the Moti Group of companies). He was handling a business transaction in Zimbabwe on behalf of another company in the group, African Chrome Fields.
He resigned immediately on his return to South Africa.
It is alleged he downloaded 4,000 files and documents from the “One Drive Data Storage”. Some of these documents were then used by former business associate Frikkie Lutzkie, who is embroiled in litigation with the Moti Group, and by amaBhungane in its reporting.
May told the TimesLIVE Premium: “It’s regrettable that this matter is being pursued at this stage at all, which creates an unnecessary risk to my client’s safety, but even more so that the correct procedures are not being followed — from the short notice of the appearance, to the defective warrant of arrest. It smacks of irrationality and the wrong driving motivations behind it.”
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