Prominent Durban businessman Thoshan Panday outside court with his legal representative Michael Hellens, SC, after proceedings. | Lungani Zungu
Durban — A legal tug of war played out in the Durban High Court, on Tuesday, between the State and the defence team of the nine accused, including prominent Durban businessman Thoshan Panday.
At the centre of the dispute was the State wanting to be granted leave to appeal against the June ruling by Judge Nompumelelo Hadebe, where she ordered the State to hand over cellphone recordings – it had “illegally” intercepted – to the defence team.
Leading the charge against the State was advocate Michael Hellens SC, representing accused number 4 to 9, including Panday. Advocate Jimmy Howse SC also represents Panday in court.
Hellens came out guns blazing, saying it would be “unspeakably irregular” if the court granted the State leave to appeal.
“This is a criminal matter, and the State knows it can’t appeal your decision. Now, the State is trying to convert this case into a civil matter so they can appeal. You can’t grant such a remedy. Our submission is that this matter be struck off the roll,” he said.
Hellens labelled such a move by the State as a “backdoor” tactic.
Hellens has represented, among others, prominent figures such as former Eskom boss Matshela Koko in a fraud and corruption and money laundering case that was struck off the roll late last year owing to “unreasonable” delays. The charges were initially related to the building of the Kusile power station, valued at more than R2 billion.
Panday and his co-accused were in court. Like Hellens, Ravindra Maniklall, representing accused 1 to 3, who included former KZN provincial police commissioner Mmamonye Ngobeni, also pleaded with the judge to strike the matter off the roll.
Taking aim at the State’s case, he said its grounds for leave to appeal against the decision to hand over the records was “hopelessly wrong”.
“The prosecution dropped the ball, and its application is incompetent in law,” Maniklall said.
There were no provisions in law for the State to appeal against rulings in criminal cases, he added.
“The State has no right to appeal in a criminal case,” Maniklall said in court. State advocate Dorian Paver tried to douse the defence’s onslaught, saying the State was justified in wanting to apply for leave to appeal.
“We are hoping that the judge will find in our favour,” Paver said after the proceedings.
Reacting to the submissions, Judge Hadebe said: “The arguments are detailed, and I have to consider them. But I am not in a position to give dates.”
Judge Hadebe adjourned the proceedings, telling the warring legal opponents that the date of her ruling would be communicated to them by the registrar of the court.
The Daily News reported how Panday was piling on pressure for the case to be struck off the roll, arguing that the delay was prejudicing him.
The accused were jointly charged with 275 counts, including operating in an enterprise engaged in racketeering in terms of the Prevention of Organised Crime Act (Poca) and the Prevention and Combating of Corrupt Activities Act (Precca). The State intends to call 187 witnesses.
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