Businessman alleges miscarriage of justice

A prominent businessperson cries foul after judge dismisses case, but the Asset Forfeiture Unit fails to return his assets. Picture for illustration

A prominent businessperson cries foul after judge dismisses case, but the Asset Forfeiture Unit fails to return his assets. Picture for illustration

Published Mar 20, 2024


A Centurion businessman is struggling to get his assets back after the Gauteng High Court, Pretoria, dismissed a fraud case against him and his associates.

The businessman and co-accused where nabbed by the police in 2022 for alleged fraud, and later he was charged for corruption for paying the legal fees of one of the co-accused, who could not pay his fees.

He said the NPA charged him because they claimed that had amounted to gratification, that’s when their assets were frozen.

According to the businessman known to The Star, he and his co-accused were cleared by the high court on Friday, with the judge striking their case off the roll, which in turn meant the Asset Forfeiture Unit (AFU) needed to release their assets.

But they were given “the runaround” by the curator who later informed them that the State attorney had instructed him not to release their assets as the case was not struck off the roll, but merely postponed.

The businessman said this was being done “just to frustrate” them, adding that he could not understand why they were told their case had not been dismissed, despite the judge’s ruling.

“We were never informed that the judge made a mistake, but how does this happen? These guys want to reinstate the charges via the back door, and they know that what they are doing is unlawful.

“The case was dismissed on Friday, and the curator gives us excuses when he had to give us our things, and on Wednesday, we receive emails from the advocate (name known to the publication) informing us that the judge had made a mistake,” he said.

The publication has seen the email in question, in which the advocate wrote to the defendants telling them that the National Director of Public Prosecution (NDPP) had made an error.

“I am advised by the NDPP that the matter was struck off the roll in error. The State attorney was in attendance to arrange a postponement. I am advised that this will be rectified shortly, and the matter postponed to another date.

“The assets therefore remain under restraint until the final restraint order has been argued. If the State is successful, the assets will remain under restraint until the criminal matter has been dealt with,” the email read.

A lawyer representing one of the defendants, Glen Malanga, said an interim order can only be granted by a court when the person against whom the order was made must on a “return court date”, come to the court to give evidence as to why a final order in that specific matter should not be made, which in this case he said the State did not do.

Malanga said in this case the State has applied the rule nisi incorrectly.

“The applicant was not in court on the return date when the matter was called, and the matter was accordingly removed from the roll. The correct procedure to follow by the applicant in this instance is guided by Rule 27 of the Uniform rules of court,” Malanga explained.

The lawyer, however, said he did not want to comment on whether the correct procedure was followed, but that the matter had been allocated to the unopposed motion roll.

“Reinstatement should place the matter in the position it was before it was struck off/removed from the roll. It is common cause that the matter was opposed by numerous defendant/respondents.

“Furthermore, we have not been served with an order reviving/reinstating the matter and/or the notice of motion and prayers,” he said.

“To revive/reinstate the matter in terms of Rule 27 requires proper notice and supported by a substantial application. And furthermore to allocate the matter in the opposed motion court.”

Malanga said he would not be drawn on the so-called “error” as the writer of the email was not in court and that he was not in possession of the transcription of the proceedings of the said date.

“The fact is that an order was made to the effect that the matter was removed from the court roll and due process must be followed in reviving/reinstating the matter. A judgment can be appealed, reviewed, varied or rescinded,” the lawyer said.

When asked if he was informed of the decision, Malanga said he was informed by electronic mail by the investigating officer on March 13, and the curator on March 14, 2024.

The Star

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