Ndebele was also expected to explain why he failed to disclose the amounts to the government while still in office as ministers are required to do so in accordance with the Executive Members Ethics Act.
All these appear to be stumbling blocks before any criminal charges against the former ambassador to Australia could be withdrawn.
On Thursday, the case against Ndebele and his co-accused – George Mahlalela, Tebogo Mphuthi, Gilbert Zakhele Thwala and Sibusiso Ncube – was postponed in the Commercial Crimes Court in Pretoria until November 10. They are appearing along with four companies, Tasima, Mandate Strategy Roadmap and Delivery, Brand Partners and Sinosa Construction.
Ncube, the husband of Nomusa Dube-Ncube, who is the KwaZulu-Natal MEC for co-operative governance and traditional affairs, could not be in court reportedly due to ill health. A warrant for his arrest was issued but held over until November 10 for their next court appearance.
The postponement was to allow the co-accused to also make a representation to the NPA. The court heard that Ndebele had already made representations to Abrahams to have all criminal charges against him withdrawn.
The Pretoria Regional Court had ruled in February last year that the NPA had a “prima facie” case against Tasima and all others charged, including Ndebele. That ruling has yet to be challenged.
The court ruling had agreed with the prosecution led by Advocate Tebogo Serunye that the R10m deposited into Ndebele's Investec account followed an illegal and fraudulent extension of a multibillion-rand contract to Tasima in May 2010. At the time, Sibusiso Ncube was the chairperson of Tasima and Tebogo Mphuthi was the chief executive of the company.
The State argues that the cash was deposited into Ndebele’s account by Ncube in two different transactions. According to evidence in that court, the finance section of Tasima received an instruction from the chief executive (Mphuthi) to start paying a company, Brand Partners, a fixed monthly amount of R2m.
Brand Partners belonged to Ncube, and was allegedly not contracted to Tasima. However, the court heard that employees were told that Brand Partners was doing marketing and research services for Tasima in Africa. Initially, payments to Brand Partners were made without any contract or invoices but invoices were submitted only after an audit query.
According to evidence in court, one witness wrote: “She has never seen any value from this supplier and, as Tasima employees, they have never met anyone from this supplier. Tasima does not have any business in Africa or even plans to get a footprint as part of the strategy.”
Former Tasima project manager Philip Johan van der Merwe corroborated the evidence, saying he was not aware of any services rendered by Brand Partners.
Kevin Kara Vala, a former employee of Tasima, also denied that Brand Partners was contracted to Tasima. Vala wrote: “Tasima employed the services of The Riverbend Agency to do marketing and communications on its behalf. Brand Partners was never used to do any marketing work for Tasima.”
All these prompted the State to link Ncube and Ndebele to a criminal act. According to the charge sheet against Ncube and Mphuthi, the State alleges that the two, through Tasima, paid Brand Partners more than R102m for at least two years without rendering services to Tasima.
“The expenditure was recorded as marketing costs in the financial statements of Tasima. Ncube was both the chairperson of the Tasima board and owner of Brand Partners at the time.
“Further investigation must be done here to ascertain if the shareholders of Tasima knew about this expense and with Sars to check if this was not a way of avoiding tax.
“The schedule of payments from Tasima to Brand Partners shows some funds were further transferred from Brand Partners to Sinosa Construction and then, from Sinosa, the amount of R10.2m was transferred to Ndebele's Investec account."
The amounts were deposited between October 2010 and September 2012. “An amount of R5.8m is linked directly to the money received from Sinosa from Brand Partners. The rest of the money received by Ndebele from Sinosa was paid into Sinosa’s account by an unknown source,” Serunye said.