Tania Broughton
tania.broughton@inl.co.za
THOSHAN Panday, the businessman alleged to be involved in a R60-million police accommodation tender scam and allegedly behind an attempt to bribe provincial Hawks head Johan Booysen, was in the Durban High Court yesterday, seeking an order forcing the police to return his banking records.
The records, obtained through five subpoenas served on various banks in May and June last year, are expected to provide the backbone of possible criminal charges relating to deals that his company, Goldcoast Trading, did with the police service just before the Rugby World Cup last year.
Panday, along with Colonel Navin Madhoe, who, before his suspension worked in supply chain management, is facing a charge of corruption.
This relates to the attempted bribe of Booysen, apparently to backdate a document that would assist him in yesterday’s court application.
The backdated document would “prove” that the State had already accessed his bank accounts before the authorisation of Section 205 subpoenas, compelling the banks to hand them over. However, the document does not form part of the court papers and this argument was not raised.
Panday has not been arrested on any charges relating to accommodation allegations, but details of the police investigation – including allegations that he paid for a birthday party for the husband of provincial police commissioner Lieutenant-General Mmamonnye Ngobeni – have already been made public.
The Mercury reported recently that Ngobeni was officially a suspect in the matter. She has told the media that she has done nothing wrong.
Panday – and at times Madhoe – sat in the public gallery yesterday, listening to argument that will determine whether the State can use his bank records to build a case against him.
Contravention
In both written and oral submissions, his advocate, Kemp J Kemp SC, said the State was seeking “the high moral ground” by holding out that his client was guilty and “unworthy to invoke constitutional protection”.
This, he said, was in clear contravention of the presumption of innocence and a matter for a criminal court.
He said he was not arguing that Section 205 – which authorises a magistrate to issue a subpoena – was unconstitutional, just that in this case the State had used an “unconstitutional process”.
This was because the magistrates had not kept a record of the documentation presented to them on which they had signed the subpoenas; the prosecutors who had made the requests were not authorised to do so; the subpoenas were overbroad; and it appeared that the magistrates had not applied their minds properly before granting authorisation.
The keeping of an accurate record by a neutral party in a matter involving infringement of privacy, he said, was an “indispensable part of justice”.
In this case, Panday was given the run-around when he requested the record, and the setting aside of the subpoenas would “serve as a salutary lesson” and stop similar conduct in future.
In his oral and written submissions on behalf of the State, Nirmal Singh SC, assisted by Ryan Naidu, said any alleged irregularity was now academic because the record had been provided.
“It is immaterial whether or not the magistrates kept the record; there is no requirement that they do so,” he said.
He argued that the two prosecutors involved in the process had both been authorised to do so. Panday’s right to privacy was outweighed by the need for a proper police investigation into a serious economic crime. Regarding an assertion by Panday that he would be willing to co-operate, Singh said if this was a serious offer, then Panday would have no objection to providing his bank records to the State.
Judge Mohini Muragasen reserved judgment. Panday and Madhoe will appear in court again on the bribery charge next week.
