Panday wins the first round 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 were 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.