Lawyers hired by the Estate Agency Affairs Board (EAAB) to look into the Wendy Machanik criminal case believe the charge sheet is “weak” and that the prosecutor has a limited view of what Machanik has done wrong.
And they want theft added to the charges too.
In a letter sent to EAAB board member Clive Ashpol, AB Scarrott Attorneys indicated that they have been hired to assist the police with Machanik’s prosecution.
Machanik has been charged with fraud after allegedly using R28 million from her company’s trust account for personal use.
The letter states that there is a major omission in the charge sheet, that a charge of theft has to be added, and that they will bring this up with the director of the National Prosecuting Authority (NPA).
AB Scarrott writes that the State has refused to give them the docket.
This is something they will not accept, the letter said.
“This is particularly so in light of the fact that the prosecutor appears to have a very limited view of what Wendy Machanik has actually done wrong.
“I have looked at the charge sheet and it is weak. This is also the view of Mike Hellens SC.”
The attorney says there is no doubt in his mind that to take money from a trust account that you are not entitled to constitutes theft. The letter describes why theft should be added to the charges.
It also says the attorneys and Hellens will prepare memorandums to give to the prosecution regarding the additional charge of theft.
“In the event that the State refuses to do so (add a charge of theft), the State will be requested to provide a certificate formally declining prosecution, which will then allow the EAAB to institute a private prosecution.”
The letter ends by saying that the prosecution is nowhere near where they would like to see it.
When The Star asked Andrew Scarrott and the EAAB for comment, the paper received a lawyer’s letter, demanding that the story not be published.
Scarrott said the matter was sub judice (before the court) and the letter was a privileged communication between the attorney and his client. They would not comment further.
The NPA also said it would not comment on the matter because it was sub judice, but confirmed the matter was with the national director of public prosecutions, Menzi Simelane.
At her last court appearance, in July, Machanik tried to enter into a plea bargain with the State, but this was turned down.
Prosecutor Adele Carstens said the dossier that Machanik’s lawyer, Cyril Ziman, presented to the court at her previous court appearance was given to the deputy director of public prosecutions.
He was asked to make representations so Machanik could enter a plea bargain.
Ziman declined to give the details of the plea agreement, but said it would entail Machanik not being sent to prison. The deputy director turned down the application and said he wanted the court case to go ahead.
Advocate Andre Bezuidenhout, who is also representing the accused, said they were not satisfied with the decision.
He said he would be taking the dossier personally to Simelane to ask him to make a decision on the matter.
Machanik and her financial adviser, Bruce Bernstein, are expected to appear in the Commercial Crime’s Court again on October 5.
Her company, Wendy Machanik Properties Ltd, is no longer in operation and the former multimillionaire has been forced to auction her R10m house to pay for some of her legal fees. - The Star