The Director of Public Prosecutions in Johannesburg, advocate Andrew Chauke, and a senior state advocate at the Specialised Commercial Crimes Court, advocate Hans Wolfaardt, have stopped the arrest of three directors of NJM Heat Treatment & NDE Services – Mark Smith, Alex Roditis and Vanessa Chungu – by the Hawks because the state advocate dealing with the matter failed to follow lawful procedure.
The charges were opened by a previous director of NJM, Baleseng Zinyana, in September 2023 after civil litigation in the Johannesburg High Court. Central to allegations levelled by Zinyana were accusations of broad-based black economic empowerment (B-BBEE) fronting allegedly committed by the directors of the company.
Last week the directors were contacted by the Hawks to surrender themselves, be arrested, processed, and taken to court where they were to appear and to be released on bail.
This would have been done before the directors had been provided with an opportunity to supply warning statements setting out their defence to the allegations of B-BBEE fronting.
The Hawks referred the legal representative of the directors, Ian Small-Smith, to advocate Jacob Tloubatla of the Specialised Commercial Crimes Unit, who had instructed the arrest of the three directors without providing them with an opportunity to make warning statements.
“I have been dealing with the National Prosecuting Authority (NPA) for more than 30 years and was disappointed with this instruction,” Small-Smith said.
“Suspects have a constitutional right to be informed of the charges against them and to provide an explanation, should they so be inclined. My clients self-reported the matter to the DPCI six months ago and have been waiting for the DPCI to contact them to provide their statements, which are completely exculpatory,” he said.
Small-Smith engaged advocate Chauke’s office and complained about the fact that the state advocate had failed to follow normal procedure. After Chauke had referred the matter to Wolfaardt, an arrangement was made that the directors would submit their statement in February 2024, whereafter a new advocate would decide whether the directors had to be charged.
“Tloubatla has resigned from the NPA, and it is strange that his swansong would be the arrest of people before they are given an opportunity to address the allegations against them,” a colleague of Tloubatla informed The Star.
“This is not how the NPA works. Arresting people who are aware of a criminal investigation against them and who are not a flight risk, without providing them with an opportunity to make warning statements, is a deeply concerning approach,” well-known criminal lawyer Ulrich Roux told The Star.
“This matter has a lot more intrigue to it than what meets the eye. There is a concerted effort to try and bring down NJM, and even journalists are being paid to assist with that,” a well-placed source told The Star.
“My clients will provide detailed warning statements to the authorities, and we are confident that the authorities will not want to prosecute them in this matter,” Small-Smith said.
“We ask for no favours from the NPA, but unprocedural, quick-and-dirty arrests have never been the policy or practice of the NPA,” he added.
Asked why he wanted to have the directors of NJM arrested before he had obtained their warning statements, Tloubatla simply referred The Star to the NPA.
The Star
sifiso.mahlangu@inl.co.za