Everything you ever wanted to know about the ‘k-word case’

The State closed its “k-word” case yesterday in the Randburg Magistrates’ Court following dramatic revelations, confusion in court, and drama outside the courtroom in a matter that has seen two men who used to call each other “brother” when they met torn apart.

Much of the public conversation around the case has revolved around whether Columbia Media director Sibusiso Peter-Paul Ngwenya’s SMS to former Kumba Iron Ore chairperson and current co-chairman of Investec Fani Titi calling Titi a “Qwaqwa k****r” (count three: crimen injuria) was racist, or if the racial slur even carried weight between two indigenous Africans.

But there is also far more to this case.

Nevertheless, Titi, as formidable a businessman as Ngwenya – who served nearly a full 10 years on Robben Island for transporting a missile from Botswana to South Africa to be used during the apartheid struggle – said repeatedly on Tuesday in court he had found the language and tone of the SMS to be “egregious” and “dehumanising”. 

“You are a fool to to be used by a Qwaqwa k****r. You bloody GREEDY racis! (sic) You will very soon know what you are dealing with. I call you a FART!” read part of the SMS Ngwenya mistakenly sent to Titi.

The SMS was meant to go to Aqueel Patel, Titi’s managing director of MRC Management Services in Sandton, whom Ngwenya blamed for a failure to pay investment dividends.

The softly spoken Patel testified in court on Wednesday that when he received the SMS from Titi he had been shocked “out of my life” when he read it.

“You bloody swine of a racist you. You chose a wrong Bantustan man. He misled you. You will bleed you are a bloody SWINE! Sue me I will appreciate it (sic),” the SMS stated, in part. 

Patel, a practising Muslim, said the message was terrifying and he found the reference to swine derogatory.

Undisputed by Ngwenya, the SMS – and its contents – pretty much cooks his goose in terms of the crimen injuria charge which, oddly, was only laid by Titi.

It may yet be Ngwenya’s misfortune to be prosecuted by senior prosecutor Yusuf Baba before Magistrate Pravina Raghoonandan, who set the bar for sentencing in the lower courts for crimen injuria when she put the infamous Vicki Momberg away for two years after her racially loaded rant at African police officers.

It’s mostly about the money

The sum total of the financial dispute between Titi and Ngwenya is nearly R54 million, causing a chasm so wide it split the 20-year friendship so far apart not even their mutual friend Terror Lekota could make them cross it during a mediation attempt, testified Titi.

The fallout from the SMS was an interim protection order some time later, and subsequently made a permanent order of the court.

It was the week’s long time gap between the SMS and interim protection order Ngwenya’s attorney Bevan Ndebele spent much of his cross-examination on, questioning if the men were as terrified as they had testified, and why had it taken so long for them to obtain the court order.

Whether Ndebele was satisfied with their answers that they were traumatised and were consulting their attorneys remains to be seen. 

It was in November 2016 when Ngwenya arrived at MRC allegedly “demanding” he be paid the dividends that both Titi and Patel felt he had overstepped the protection order that “directly or indirectly” – according to the charge sheet – prevented Ngwenya from causing harm or inspired the reasonable belief that harm may have been caused to the complainant or a related person by unreasonably engaging in or attempting to engage in harassment.

Key to the charges were the words Titi’s office manager Eucharist Mabena claimed Ngwenya had used while “shouting” in the reception area that if he didn’t receive his money, he would “ngizozibulala ezinja” (kill these dogs)”.

Is the case even about the k-word really?

Much of the noise around the purported “black-on-black racism” (is it or isn’t it?) of the SMS has obscured the two main charges of Ngwenya’s alleged contravention of the protection order (counts one and two).

Not only has the SMS dominated the public conversation, it’s also dominated court proceedings with both the State and the defence seemingly drifting off course in trying to figure out what constituted a breach of the order and if, in fact, it had occurred.

Only one witness for the State, Eucharist Mabena, testified she heard the words “kill these dogs” spoken in isiZulu by Ngwenya.

Ndebele focused on the fact that MRC’s receptionist had also been present and had most likely heard Ngwenya “shouting”, yet did not testify.

Also surprising was Mabena’s testimony that her husband and Ngwenya were friends, and she had met with Ngwenya post the incident at MRC where Ngwenya had allegedly apologised to her.

Mabena stated during her evidence-in-chief that she had initially not wanted to give a statement because she did not want to be involved, but it was during the dinner with her husband and Ngwenya that she decided to go ahead.

Patently furious under cross-examination, Mabena said that when armed security officials arrived it was the first time she – and her five-year old son who was in reception at the time of the incident, during which she asserted Ngwenya had pushed her – had been exposed to “rifles”; she blamed Ngwenya for that.

Mabena also said it was the first time someone had put their hands on her while she had been in business.

Oddly, again, no charge emanated from the alleged assault.

Ngwenya denies it all

Through Ndebele, Ngwenya repudiated her entire testimony, “putting it to her” that he had never said “kill these dogs”, shouted, or pushed her.

While holding up well under persistent cross-examination from Ndebele, it was afterwards in the courts’ corridor that Mabena broke down in tears from the stress.

Next and last on the stand for the State was Josiah Ndlovu, Titi’s financial manager under Patel.

His testimony centred on his presence at MRC’s reception during Ngwenya’s alleged rant, and how he had been shocked and threatened by Ngwenya’s “aggressive” attitude.

Ndlovu said he went to Patel and recommended Ngwenya be paid, and Patel subsequently authorised payment of nearly R590 000 into Ngwenya’s personal account.

Making the payment into Ngwenya’s personal account – monies destined for Columbia’s shareholders – was one of the bones of contention that had led to the SMS, the court order, and the subsequent drama at MRC.

The practice had been occurring for some time, Patel had testified earlier, and it was under legal advice that MRC withheld payment until Ngwenya submitted his company’s banking details.

Ngwenya has denied being told to do so.

Interesting problems

Back at MRC, having received confirmation payment had been made, Ngwenya wanted the interest on the dividend as well, which was subsequently done.

Shocked by the encounter, Ndlovu testified he had been emotional when he confronted a subsequently calmer Ngwenya, asking him why Ngwenya had treated him so harshly when he knew Ndlovu had acted on instructions from Patel.

Again, Ndebele repudiated Ndlovu’s testimony on behalf of Ngwenya. 

Ndebele is likely to call Ndlovu’s credibility into question thanks to conflicting testimony with Mabena over a passing conversation Mabena said they had but an apparently flustered Ndlovu couldn’t remember, especially when Ndebele began hammering him on the issue.

The case is expected to continue on 24 May with the defence to present its side of the story.

And there’s really only one issue Ngwenya has to explain, both in this matter and in the pending R54 million case – why he didn’t simply give Columbia Media’s banking details to MRC.

The disputed R54 million is the subject of a pending court case due to proceed once this current matter is finalised.

At the end of the day, Ngwenya’s deep pockets from a very successful career in business will shield him from any fine the court can hand down if he is convicted. 

It’s the loss of 20-year friendship money will never buy.

Also read:  Ngwenya’s SMS scared Patel witless, ‘k-word trial’ hears

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