Controversial Durban businessman Thoshan Panday, who has been accused of fraud and corruption relating to a 2010 FIFA World Cup tender, may face the music after he lost his court battle to stop the case against him from being prosecuted.
The Pietermaritzburg High Court on Wednesday dismissed Panday’s application to review and set aside a decision by former National Director of Public Prosecutions (NDPP) Shaun Abrahams to prosecute him and co-accused Colonel Navin Madhoe and Captain Ashwin Narainpershad, who were both in the employ of the South African Police Services (SAPS).
It’s alleged that Panday and his co-accused defrauded SAPS relating to the temporary supply of accommodation for police officers during the FIFA World Cup.
The tender was reportedly worth R60 million.
Abrahams had, in 2016, overturned a decision by KwaZulu-Natal Director of Public Prosecutions boss Moipone Noko not to prosecute the Durban businessman and his co-accused for the fraud and corruption case.
Noko further declined to prosecute two other matters against Panday which emanated from the original matter.
This included a case of interference against former KZN police commissioner Mmamonnye Ngobeni, who allegedly instructed Kwazulu-Natal Hawks head, Major General Johan Booysen, to abandon the investigation against Panday.
Ngobeni was subsequently suspended and resigned from SAPS in 2018.
The second case was also of alleged interference in the FIFA World Cup investigation whereby Madhoe, on behalf of Panday, was accused of attempting to bribe Booysen to quash the case.
An undercover operation was launched on 8 September 2011 and Madhoe was allegedly caught handing over a bribe of R1.43 million to Booysen.
Noko provisionally withdraw this matter and later made a final decision not to prosecute.
The court slammed Noko for irrationality in her decision-making process in these matters as she had stated there was “no evidence to prosecute any person with any offence”.
Judge Trevor Gorven said: “This simply ignores a 400-page report by forensic accountants and a ‘trove’ of documents which allegedly provide evidence of the involvement of Mr Panday in the offences.
“To say that ‘Mr Panday and Col. Madhoe featured nowhere in the [case number] 781′, beggars belief.”
A third case was also registered, accusing Panday of fraudulently attempting to unfreeze the funds which he claimed were payable to him by SAPS in relation to the tender.
In his judgment, Gorven said Panday’s application sought to attack mainly two aspects in Abrahams’ decision to prosecute him, namely a failure of rationality and that the former NDPP did not consult Noko before reviewing her decision.
Panday also tried to argue that Abrahams’ decision to prosecute him was tainted because he failed to listen to conversations that were intercepted from his phone by the Hawks.
The interceptions were authorised by a judge after an investigator on the case was allegedly threatened.
Gorven found there was adequate consultation with Noko and in the test of rationality, Panday had not shown that Abrahams did not use means appropriate to the end of reviewing the decision of Noko.
On the issue of the telephonic interceptions, Gorven found that the conversations did not form part of the investigation into the tender case, but rather the interference of the case and were thus not applicable to be considered by Abrahams.
Based on the findings, Gorven dismissed the application, which would likely pave the way for the prosecution of the FIFA World Cup tender case to go ahead.
The matter had also since been ventilated at the Zondo commission, with witnesses coming forward to speak about Panday and his relationship with implicated SAPS officials.