Durban - Businessman Thoshan Panday has applied for leave to appeal against a decision of the Pietermaritzburg High Court that dismissed his bid to have charges relating to fraud and corruption surrounding a 2010 Fifa World Cup tender quashed.
Panday has filed an application for leave to appeal the decision, in which he argued, among other challenges to the ruling, that his right to a fair trial may have been compromised after the police allegedly intercepted telephone calls between himself and his attorney.
He argued that the intercepted telephone calls, which the Directorate for Priority Crime Investigation (DPCI) had declined to release to him and to prosecutors, may have breached attorney-client privilege and revealed his trial defence.
Panday, who had been charged with fraud and corruption in connection with SAPS expenditure of an estimated R55million for temporary police accommodation during the World Cup, argued in his high court review application earlier this month that the decision by the National Prosecuting Authority (NPA) to prosecute him was neither legal nor rational.
It was alleged that Panday and his co-accused, then policemen Colonel Navin Madhoe and Captain Ashwin Narainpershad, defrauded the SAPS.
Panday argued that former NPA head Shaun Abrahams had acted outside his powers and taken the decision to prosecute him without adequately consulting then KZN NPA head Moipone Noko, who had in 2017 declined to prosecute, and without obtaining recordings of the intercepted telephone calls.
Judge Trevor Gorven dismissed with costs Panday’s application to review Abrahams’ decision to prosecute him in several cases, criticising Noko’s decision not to prosecute despite thousands of documents of evidence and a 400-page forensic report..
Panday’s attorney, Kershnie Govender, argued in the leave to appeal application that the DPCI had withheld the telephone recordings because they were “adverse” to themselves, and that Abrahams had not adequately consulted Noko or the rest of the prosecution team before making his decision.
She argued that Abrahams had based his decision on a review of Noko’s original memorandum not to go ahead with the prosecution and had not come up with any new reasons for reviving the prosecution.
She said his right to a fair trial may have been compromised by the intercepted telephone calls.
“The law is clear that a stay of prosecution is fully justified in circumstances where the pre-trial procedures adopted by the State render it impossible for the applicant to enjoy a fair trial,” Govender said in court papers.
She said that in circumstances where the DPCI was “deliberately withholding” the recordings, “the inference is fully justified that the applicant cannot have a fair trial regardless of the merits of the case”. She argued that the police “eavesdropping” on his conversations with his attorney regarding his defences was “egregious”. She said if the intercepted recordings revealed that there was a conversation between Panday and his attorney, it would put his submission that he cannot enjoy a fair trial “beyond debate”.
“The common cause fact that Abrahams twice requested the intercepted recordings from the DPCI in order to properly carry out his mandate in his review of Noko’s decision itself showed that it was a vital procedural and substantive component of the review for Abrahams to at least obtain and consider the intercepted recordings.
“Clearly, Abrahams had thought so, or he would not have asked for them. All that thereafter had changed for Abrahams was that he was inexplicably refused access to them,” she said.
She argued that all the evidence pointed to the need for the intercepted recordings to be made available to the National Director of Public Prosecutions before Noko’s decision could be overturned. “The proven fact that the DPCI, without any plausible reason, omitted to provide the intercepted recordings to Abrahams ought to have led the learned judge to hold that the DPCI deliberately withheld the intercepted recordings from Abrahams as they had done with (Abby) Letsholo, (Bulelwa) Vimbani and Noko, and that the more plausible or natural inference, consistent with the proven facts, was this was because the recordings were adverse to the DPCI, not supportive.
“The learned judge was accordingly with respect wrong when stating that evidence of this kind must be left for adjudication by a trial court,” she said.
The Mercury