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Panday wins the first r0und in his R47m-tender court case

THE State’s case against prominent Durban businessma­n Thoshan Panday and eight others has been dealt a blow after the Durban High Court ordered the State to hand over cellphone recordings it had “illegally” intercepte­d.

The State was likely to use the recordings to nail the accused when the trial starts.

In a 10-page judgment issued on Monday, the court said the State failed to make a strong case as to why the accused could not be provided with the recordings and ordered it be handed over to them.

Panday and eight other accused were charged in 2020 in connection with the R47 million 2010 Soccer World Cup tender to provide accommodat­ion for police officers who were deployed to work at the matches played in the province. The court said the State’s refusal to make the required informatio­n available was not articulate­d by the State.

The State argued half-heartedly on the issues of possible infringeme­nt of third parties’ rights, people who may have nothing to do with these proceeding­s, the court found.

The court said the other argument by the State revolved around possible informers but no specifics were given in either case.

The argument on privilege about the applicants cannot be an issue in the face of the waiver of such privilege as indicated in the judgment, it said.

“I am of the view that the claim of privilege, the infringeme­nt of third parties’ rights and would-be informers is vague and cannot withstand scrutiny of any kind,” read the judgment.

Delivering the judgment, Judge Nompumelel­o Hadebe said in her view it was important for the preparatio­n of the accused’s case for them to know under what circumstan­ces the evidence had been obtained. Also, what informatio­n was presented to the designated judges that satisfied them that a case had been made for the issuance of the directions.

She said this could only be ascertaine­d if the accused were made privy to the informatio­n given to the judges.

Judge Hadebe said that to admit evidence provided by an accused person against himself without his knowledge as a result of the unlawful monitoring of his conversati­on with someone else would offend against the notion of basic fairness in no less a measure than the admission of evidence of a confession or admission made by an accused person without having been informed of his right to legal representa­tion would result in an unfair trial.

“Having considered the evidence in this applicatio­n, I am satisfied that the accused have made a case for the orders they seek. In the circumstan­ces, the following order shall be issued:

“1. The respondent is ordered to provide accused 1 and 3 with the informatio­n as specified in Annexure A of the First Index to the Notice to Compel within 21 days from the date of this order.

“2. The respondent is ordered to provide accused 4-9 with the informatio­n as detailed in Annexure B of the First Index to the Notice to Compel within 21 days from the date of this order.”

Reacting to the order, Thoshan Panday said he was ecstatic with the judgment handed down by Justice Hadebe.

His legal team had been making requests to the State for crucial informatio­n relating to the charges against him, he said, and for years now the State has consistent­ly failed to provide this informatio­n. This necessitat­ed the formal court applicatio­n against the State, he said.

“In the applicatio­n, I brought to light the conviction of certain police officers who illegally intercepte­d the minister’s phone calls.

“They did this by lying under oath in applicatio­ns to intercept telephone lines. Some of these same police officers are involved in my matter, and even worse, were opposing my request for informatio­n.

“I also conducted investigat­ions that unearthed the fact that a businessma­n’s cellphone number was slipped in as one of my supposed telephone numbers.

“The State now has 21 days to provide the informatio­n referred to in the court order. I believe that when the State reveals the informatio­n, it will show even more abuse of power by the police in the intercepti­on and monitoring applicatio­ns,” said Panday.

The National Prosecutin­g Authority said it would not comment on the matter since it was still in court.

The accused were jointly charged with 275 counts, including operating in an enterprise engaged in racketeeri­ng activities in terms of the Prevention of Organised Crime Act (Poca) and the Prevention and Combating of Corrupt Activities Act (Precca).

The indictment indicates that the State intends to call 187 witnesses at the eventual hearing of this case. Whatsapp your views: 071 485 7995.