High Court backs Moti Group against ex-employee’s theft

Dondo Mogajane, CEO of the Moti Group. Image: Supplied.

Dondo Mogajane, CEO of the Moti Group. Image: Supplied.

Published Jan 19, 2024


Former Moti Group employee Clinton Van Niekerk could once again face arrest for the theft and distribution of private and confidential documents.

This follows the Group’s successful application to the Durban High Court to have a previous court order that overturned Van Niekerk’s warrant of arrest set aside.

Dondo Mogajane, CEO of the Moti Group, describes the recent High Court victory as a key milestone for the Moti Group in protecting its interests as the victim of Van Niekerk’s criminal behaviour and his illicit partnership with controversial businessman Frederick Lutzkie, a dissident shareholder and legal opponent of the Group.

“This application was vital to the Moti Group as a matter of principle to defend our rights and the rights of all victims in criminal cases. The order setting the warrant of arrest aside was based on a series of false claims and outright lies, and represented a gross miscarriage of justice,” he says.

“However, we fully respect the rule of law, which is why we did not also seek to have the warrant for Van Niekerk reinstated. After reviewing the facts, the High Court agreed with our position, and it is now up to the National Prosecuting Authority’s discretion whether to reinstate the warrant. But the criminal complaint laid against Van Niekerk remains, and there is ample evidence to support his prosecution for his misdeeds.”

Criminal dealings and the warrant of arrest

Van Niekerk left the Group’s employment in October in 2022, and shortly after, private documents owned by the Moti Group began appearing in court papers filed by Lutzkie, pointing to a clandestine relationship between the two as they attempted to effectively extort money from the Group.

In response, the Group quickly employed the services of professional forensic consultants, O’Sullivan Brosnan and Associates (OBAA), led by renowned investigator Paul O’Sullivan. OBAA in turn appointed Cyanre, the digital forensics lab, to conduct a cyber-audit. Cyanre confirmed that Van Niekerk had illegally downloaded or stolen over 4,000 private company files.

The Moti Group further obtained evidence that suggested that having shared these documents with Lutzkie, Van Niekerk then planned to flee the arm of the law in South Africa by moving to New Zealand with his wife.

The Group shared its evidence with the police, and the police issued a warrant for Van Niekerk, who was then arrested while attempting to board a plane in Durban. But, as further evidence of the criminal relationship between the two, Lutzkie approached the Durban High Court on Van Niekerk’s behalf to obtain an urgent ex-parte order setting his warrant of arrest aside.

The fraudulent and highly irregular “oral” application was made in the afternoon without the presence of either the Moti Group or the NPA. During these proceedings. Lutzkie made a series of extremely serious allegations against the Moti Group, the police, and the NPA, deliberately misleading the court and even lying under oath to create the false impression that Van Niekerk was a whistleblower who was in danger from the Moti Group, and should not be prosecuted for his crimes. The order was then granted.

It is telling that Lutzkie chose to bring the application to free Van Niekerk from facing justice or further investigation. This supports the Moti Group’s belief that in complete contradiction of his claims to being a whistleblower, Van Niekerk shared the stolen documents with Lutzkie and then the media out of malicious motives, and that the documents were deliberately modified with the intent of damaging the Moti Group’s reputation.

Lies and fake whistleblower claims exposed

In his scathing judgment on the matter, Acting Judge Laing found that Lutzkie should not have been allowed to bring the application on Van Niekerk’s behalf, and that the application was based on hearsay and “erroneously sought and erroneously granted”. As a punitive measure, he therefore instructed both Lutzkie and Van Niekerk to pay the costs of the case.

Following the NPA’s failure to defend its position against the application, he also ordered that the matter be brought to the attention of the National Director of Public Prosecutions, noting, “The approach of the NPA as a party actually involved in this process leaves much to be desired.”

Crucially, the judgment further pointed to several serious and glaring flaws in Van Niekerk’s version of events, noting that there was no urgency to the matter, and “no reasonable explanation as to why Van Niekerk could not make the application himself” following his arrest – especially as he still had access to his legal counsel while safely in police custody.

In terms of the Protected Disclosures Act, 2000, employees who disclose information relating to employers are only whistleblowers if they do not disclose information for financial gain.

“This case has proven that Van Niekerk, as the source of the media campaign against the Moti Group, is an unethical individual who has unfortunately been allowed to manipulate the press and the public. Furthermore, we believe that it has exposed Lutzkie’s lies and underhandedness in his dealings with our organisation.

"We remain hopeful that the full might of the law will be applied, and that Van Niekerk, Lutzkie, and all other individuals involved will be held accountable for stealing and receiving stolen property,” concludes Mogajane.