S v T Motaung & Others (Part 2)

The restraint order of 5 March 2007 fundamentally changed the lives of our clients. In one day they lost all what they had worked for many years. Suddenly they had no access to their accounts and no financial institution could open new accounts with them. They were not allowed to obtain credit anywhere in the Republic. They could not travel out of the Republic as they had surrendered their passports. Bluntly put, all their material needs had to be communicated and channelled through the Curator’s office. This was of course a recipe for disaster, as it will become clearer herein.

As indicated in our previous article, part 2 focuses on the period between the restraint order and the trial.

Our strategy on the Restraint Order

The initial restraint order was obtained in the absence of the Accused persons in what is known as ‘Ex Parte application’. The order is often, if not always, in favour of the Applicant but the law requires that Respondent party be given an opportunity to later come before court (on the return date) to oppose the Applicant’s contentions and to object to the order being made final. In the Motaungs’ case, the return date was 9 May 2007.

We indicated in part one (1) that when AFU raided the Motaungs on 5 March, they took every little paper they could lay their hands on. This attitude created an impression on us that says AFU did not obtain the restraint order for the purposes they sought in their application. Instead, the restraint order was used to further the intentions of the investigations which, legally, ran contrary to the court order sought.

Just a layman’s clarity on this issue, if one is arrested on suspicion of fraud and corruption, the relevant legislations dictate that anything suspected of being the proceeds of crime can be attached (by the Asset Forfeiture Unit-AFU) until the accused is found guilty and the said proceeds are forfeited to the State (the so-called Chapter Six (6) application). The purpose of these legislations is clear, that the accused should not be allowed to continue deriving a benefit from the suspected proceeds of crime while the case is on-going. However, the recent Constitutional Court decision has emphasized on what needs to be attached, namely, the property used as the instrument to commit crime. (See the related article on our website under the heading “Drunken drivers, beware”). This has become known as the ‘instrumentality principle’ within the legal circles.

In our view, and over and above Captain Claasen of SAPS, AFU was another investigative unit that sought to pass information (obtained under the pretext of a restraint order) to the investigating officer. It was clear at the time of the order that the investigating officer still faced some challenges in his investigation. For instance:

He did not know the real owners of the Motaung farm at Reitz (Free State);
He did not know who owns Mr. Singonzo’s taxi fleet;
He thought Thuso Motaung owned property occupied by his ex-wife in Diepkloof,
He did not know the circumstances surrounding the disclosure of interests to SABC by the Motaungs;
He thought the Motaungs will deny that they were selling power-mix;
He did not know how the property in Mosselbay was acquired by the Motaungs;
He did not know how Thuso acquired his interests in two other close corporations;

The only way the investigating officer could ever know about all of the above was to use AFU’s ‘loot’ in search of the answers. Clearly, we could not assist him to find those answers. Aware of his frustrations, we opted not to oppose the Restraint Order on 9 May 2007, otherwise we risked exposing our defence. We opted to be extra kind to the Curator and to cooperate as much as we could. Any antagonistic or hostile attitude from our side could further worsen our clients’ plight.

Mini-battles between the Motaungs and the Curator

We sensed in due course that the investigating agents (Capt. Claasen & AFU-duly assisted by the Curator-) deciphered our strategy and were prepared to put the fight back to us. Of course they did exactly that. They tried to frustrate the Motaungs with all sorts of things. The Curator accused the Motaungs of not having disclosed all their assets. He charged that if R32 million was stolen as alleged, why the value of property in their possession is less than the said amount. Based on that theory, he refused to allow the Motaungs a monthly allowance until they have cooperated fully by disclosing “all hidden” properties. (Call it black-mail if you like)

The move affected the daily routine of the Motaung as it became increasingly impossible for them to buy groceries and pay school fees for their young ones. The final nail on the coffin came when the Curator denied Mmamontha her SABC salary. They had hit hard where it hurts most. Faced with this onslaught, our strategy had to change. We decided to take the battle back to them!!!

On 9 May 2007, instead of opposing the final order of the application, we brought an urgent application in the Johannesburg High Court to force Curator to allow the Motaungs a monthly allowance. We briefed a junior counsel (advocate) for this purpose. However, on the door steps of the court, the Curator succumbed to the pressure. He agreed to:

Release Mmamontha’s salary;
Open the Motaung’s shop (The shop became known as Thuso’s spaza shop);
Release a Nissan bakkie for the Motaungs to use at the shop;
Allowed Thuso Motaung’s CDs to be released for sale.

In turn, the Motaungs also had to agree “to cooperate with the Curator as much as possible” Given the circumstances, this was a victory to the Motaungs and to our strategy. We must mention that prior to this victory the Curator had just suffered, under similar circumstances, yet another setback against Mr. Singonzo where the High Court had ordered the release of 15 taxis belonging to Mr. Singonzo.

It was evident that the centre could not hold. We smelt victory. We felt that the state’s case was so poor that it would be difficult for the state to present it. This became evident when the Curator / AFU / NDPP could not even justify to court why they were entitled to keep the property they released. This confirmed our long held theory that the investigating officer was still clueless about the charges he wanted to prefer on our clients. It was further our opinion that the investigating officer was used by the internal SABC investigators to pursue the investigation, something that he never started and as such he did not understand the dynamics of this case. He was simply unhelpful to SABC’s case. His unhelpfulness became clearer when Thuso Motaung was charged with violating his bail conditions. It was alleged that Thuso met Tsietsi Mohaladi (a fellow colleague) and made verbal threats against Lucky Qacha (another colleague at the SABC). At the inquiry, the reader could vouch that the investigating officer was the defence witness. The reality was, ‘he … was … not’. Thuso Motaung was acquitted and released.
This was yet another moral victory and for the general strategy of the case.

Once again, the State limitations on the case were exposed and we planned around such limitations. This was in spite of assertions by the State that the investigations are complete, confident with the case and that they were ready to proceed to trial. In August 2007, a trial date was set for 3-19 March 2008. In October 2007, the accused / defence were provided with the contents of the docket to prepare for trial.

Trial preparations

The Prosecution, we thought, held a view that Zola Majavu would conduct the defence in his person. This was not to be. We kept the little surprise close to our chests until very late for the State to change their lead prosecutor. We had briefed a seasoned and highly experienced advocate on criminal matters, Adv Michael Hellens SC. With him leading the defence team, coupled with the weaknesses on the State’s case, the prosecution could not match the defence pound-to-pound. Adv. Hellens was just ‘too’ experienced for a relatively experienced Prosecutor.

Starting from 25 February 2008 to 29 February 2008 the team met at Michael’s imposing office in Sandton Chambers to strategize about the case. Clients explained their side of the story to our satisfaction; suffice to say we had no trouble in presenting their defence to court.

There were light moments during the preparations when Michael would say to us, “Let me just give Dali (Mpofu) a call, perhaps he will instruct his boys to withdraw the case and I won’t get to charge you more”. And suddenly say, “Let’s just plead guilty for the fun of it”. Of course his comments would be followed by tearful laughter from everybody in the office.

The master piece came during the trial when Michael pulled this one. Magistrate Ramlaal had just adjourned for tea break after a tense morning session and while everybody was quite and waiting for the Magistrate to finally leave the courtroom, Michael started singing. “Mshini’wam Mshini’waaaaam …. Mshini’wam Mshini’waaaaam ” at the same time thumping the ground with his right foot in a rhythmic way. Everybody just burst into laughter. In his true Michael way, and as if he did nothing to amuse people around him, he started relating stories of his experiences as a young advocate. Fascinating man indeed!!!!

The Prosecution team only suspected that Michael was leading the defence on 29 February. This came after he inquired about the Magistrate to preside on this case. This was too late for the State to change its tactics and it was clear to us that the prosecution was unsettled by our move. This left one prosecutor to comment after the case that “This was really unfair. How did we expect the poor Prosecutor to win (the case) against five attorneys, including two counsels?”

Our key strategy

We correctly interpreted the State’s strategy, in particular the fact that their case was built around a single witness, one Andre’ Bouwer. Bouwer was the SABC’s internal investigator and was the key State in the case. However, the shortcoming of that strategy was that whatever Bouwer was going say would be repeated by other State witnesses. In other words, the State intended to use him to lay-out the basis for other witnesses. This, we thought, was the duty of the Prosecutor and not that of a witness. He would explain how the investigation started, who was interviewed and what they told him and how guilty the accused are. We had therefore planned to object if the State wanted to call him as the first State witness. Without Andre’ Bouwer, the State’s case was significantly weakened…...

Read more in part three of our articles on what transpired in court.

By: Teboho Seleke