Durban businessman Thoshan Panday and his co-accused in the R47 million Fifa World Cup tender scandal urged the State in the Durban High Court on Monday to disclose transcripts of recorded mobile telephone conversations.
The State had given the defence 31 mobile-originated call (MOC) phone conversation recordings conducted between October 2010 and mid-2012 over an 18-month period.
The defence argued that it was an unauthorised “phone bugging” case and made an application to access all the recordings. One of the conditions by the State was that the defence should listen to the recordings in the presence of a police officer.
The 550-page application was brought by the accused, Navin Madhoe, former KwaZulu-Natal provincial commissioner Mmamonnye Ngobeni and others.
“We brought this application in 2021 to compel the State to give us information that is critical for fair trial purposes. The investigating officers were convicted for illegally monitoring the current minister of police’s phone – these are the same officers that bugged my phones and are refusing to give us the evidence.”
The accused face charges of racketeering, fraud, corruption and money laundering. It is alleged by the State that Panday has been identified as the sole member of Goldcast Trading CC, which was awarded orders worth about R47m for accommodation for police members deployed within KZN for the 2010 Fifa World Cup.
At a previous appearance, the court had set the date for a pre-trial to November 29, but on Monday the defence argued that without access to the recordings it could not proceed and the trial would be unlawful.
Senior State prosecutor Dorian Paver said the defence had made an application but the reluctance of the State to disclose it was because others have the right to protection and the disclosure of other persons not party to this litigation was a concern.
Paver briefed the court that there were threats made to the investigating officers, and that was the primary reason why the application was made for an MOC.
Paver told the court that a meeting was set up for the defence to listen to the recordings.
Paver said only Madhoe took the opportunity and made a recording of the 31 conversations on his own phone.
Attorney Ravindra Maniklal, who is representing Madhoe, Ngobeni and Narainpershad, told the court that, “there were vast patches of missing information” and that the State was not clear in its response.
“We have seen so many gaps. If we do not have access, it will be difficult to prepare for the case,” he said.
Panday’s attorney, advocate Michael Hellens said the State needed to get its house in order.
“We want to look at all conversations. If not, it will prevent us from having a fair trial.
“The annexures or transcripts have not been given to us to get a full picture of what happened. We challenge the lawfulness of phone tapping. The evidence should not be admissible in court because it was done illegally and by crooked police who lied under oath,” he said.
Advocate Jimmy Howse said there was no metadata, date, time or duration of the recordings, which made things difficult to contextualise.
“Where is the harm in the State providing us with the information?”
Judge Khosi Hadebe reserved her judgment.
The defence, Hellens and Howse, argued that SAPS Crime Intelligence had added numbers to an application to a designated judge for an interception order.
The defence said the numbers were not that of Panday’s, and the police officers misled the judge.
The defence argued that based on the police’s affidavit, portions have been redacted relating to the names and phone numbers of persons whose communications were sought to be intercepted.
This evidence suggests that certain of the phone numbers of the individuals referred to by the police in relation to the matter were false, as was the case in the application.
The defence argued that based on the proven misconduct by the police in the application together with the evidence outlined, it was imperative that the names and phone numbers which have been redacted are disclosed.
The defence argued that it was beyond “mysterious” why the police took it upon themselves to exclude from the docket and from the prosecution all of the evidence relating to the interception and monitoring.
“They clearly have something to hide. We require unfettered access to all the recorded conversations in order to determine that they do not contain information that is patently false or downright misleading.
“Based on the disturbing revelations regarding the conduct of the police involved in the interception and monitoring process, it increases the need for full transparency, the defence argued.
Panday told the Daily News that the State had 13 years to prepare its case and the delays were frustrating.
In May 2023, IOL reported that the SAPS had been given the right to monitor and intercept cellular communications for mass surveillance purposes.
Justice Minister Ronald Lamola gazetted a 5-year “certificate of exemption” under the Regulation of Interception of Communications and Provision of Communication-related Information Act.
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