Dondo Mogajane, CEO of Moti Group.
The Durban High Court delivered a decisive judgment in favour of the Moti Group on Thursday, overturning the Durban High Court’s “flawed” decision in January to release former employee Clinton Van Niekerk from police custody following his arrest for theft and fraud.
The ruling, issued by Acting Judge Laing, vindicated the Moti Group’s stance about the serious irregularities in van Niekerk’s release, and represents a major victory for the Group in its ongoing bid to seek justice for his criminal theft of over 4,000 confidential documents in October 2022.
The High Court further imposed cost orders against both Van Niekerk and Frikkie Lutzkie, who had ostensibly acted on van Niekerk’s behalf in the initial application at the Durban High court to set the warrant of arrest for van Niekerk aside.
Dondo Mogajane, CEO of Moti Group, describes the judgment and cost order as a stern reprimand punishing Van Niekerk and Lutzkie for obstructing justice.
He emphasises that the Group’s recission application was brought as a matter of principle to prevent accused criminals from similarly abusing the legal system to evade the law.
“Our intention was never to interfere with the course of justice, as demonstrated by the fact that we did not seek or apply for the re-arrest of van Niekerk. But as the victims of his crime, we did feel that it was important to challenge the irregularly issued court order and shed light on the highly questionable proceedings that had led to his release,” he said.
The crux of the matter revolved around the validity of the original warrant of arrest for van Niekerk, who was caught by police at the King Shaka International Airport in Durban and taken into custody just prior to boarding an international flight in what appeared to be an attempt to flee the country to avoid prosecution. Van Niekerk’s representatives later dubiously claimed he was cooperating with Australian police, who had supposedly arranged a visa for him to travel to the United Kingdom.
The Moti Group has evidence that contrary to his claims of being a “whistle-blower”, Van Niekerk had already shared the stolen documents with Lutzkie, possibly for a price, to assist him in his legal battle against the Group. Lutzkie then subsequently orchestrated the proceedings at the Durban High Court to secure Van Niekerk’s release by falsely alleging that the warrant was a fraud or issued improperly.
However, the High Court has confirmed that this warrant of arrest was indeed issued properly in accordance with proper criminal and legal procedures, and was valid. Acting Judge Laing further highlighted serious concerns about the implications of applications like Lutzkie's on the country's justice system.
His observations underlined numerous procedural flaws in Lutzkie's application, notably the absence of the National Prosecuting Authority (NPA) as a respondent, and the irregularities in the ex-parte procedure at the Durban High Court.
The judgment further expressed grave reservations about the manner in which evidence was presented at the court and its reliance on hearsay, emphasising that the application did not comply with correct legal procedures.
“It is … necessary to ensure that correct procedures are put in place, otherwise every justifiable arrest could result in an application habeas corpus instead of bail application procedures,” warned Laing.
The judgment concluded, “It follows that the ex parte procedure was flawed and the order was incorrect. The habeas corpus application was erroneously sought and erroneously granted.”
Mogajane expressed his satisfaction with the ruling, noting that it has upheld the rights of victims of crimes in criminal cases against the mischievous interference of third parties with malicious intentions.
“The SAPS and NPA are now able to proceed with the case against Van Niekerk. The wheels of justice may turn slowly, but we hope and trust that justice will ultimately prevail and that Van Niekerk will be held accountable for his criminal misdeeds.”
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