Nawaal Deane
It has been almost 10 years since the Office for Serious Economic Offences (OSEO) began investigating allegations that attorney Ntehdi Bogoshi defrauded clients who were making claims against the Multilateral Motor Vehicle Fund.
He has yet to be charged.
The reason for this decade-long delay, according to the Directorate of Public Prosecutions, is that the investigation is still pending. “I would like to point out that the conduct of the firm Bogoshi, Lepule and Partners was only one of several firms investigated. Mr Bogoshi was not solely investigated,” says a representative of the directorate.
The investigation was completed by OSEO in 1995 and referred to the directorate with the recommendation that charges be laid against Bogoshi.
But six years later the directorate has not managed to conclude its investigation, drop the case or charge Bogoshi with allegations published in City Press, although, says the representative, “at this stage personnel are attending to the matter with the view to institute prosecution”.
Bogoshi’s case hit the headlines in 1991 after he and a number of other law firms had been investigated by the auditor general for allegedly “touting” for clients in streets, at hospitals and police stations. City Press published a string of articles alleging that Bogoshi had been involved in defrauding third party clients who had claims against the fund.
In one of the most famous legal battles, Bogoshi sued City Press for R1,8-million for publishing defamatory articles. The Supreme Court of Appeal ushered in a new era of press freedom when it ruled in favour of the newspaper, releasing South African journalists from earlier rulings which had held them automatically liable for wrong information.
The judgement said: “We must not forget that it is the right and indeed a vital function of the press to make available to the community information and criticism about every aspect of public, political, social and economic activity and thus to contribute to the formation of public opinion.”
In his judgement, Judge Joos Hefer said: “If upon consideration of all the circumstances in the case it is found to be reasonable to publish the particular facts in the particular way and at the particular time, it would not be regarded as unlawful.”
He said the previous law of defamation had not achieved a proper balance between the right to protect one’s reputation and freedom of the press.
Judge Hefer said that in addition to this new defence, journalists could escape liability by showing that they were not negligent in publishing information, even if it turned out to be incorrect. City Press had proved that its reporters had taken reasonable steps to establish and investigate the truth of the allegations against Bogoshi.
But despite this victory for press freedom, very little progress has been made into the matter that set it off, the investigation of these firms. BJ Bredenkamp, deputy director of public prosecutions, blames the delay of the investigation on absent witnesses who are hard to locate. “Most of these witnesses can only be reached with 4x4s and we still need to establish whether they are around,” he says.
“I can confirm that the decision was made that partners of the firm should be prosecuted.” The reasons for not instituting any proceedings thus far is the turnover of prosecutors due to resignations and the non-availability of an investigating officer to assist in the investigation at this stage,” says a representative of the director of prosecutions.
Irrespective of whether Bogoshi is guilty or not, failure to proceed with the prosecution makes the case a cameo for the inefficiency of the justice system.
Bogoshi, according to the law society, is still practicing as an attorney and the directorate is unaware of his whereabouts.
Last week the board of the fund took over the management from the executive in an effort to stop widespread corruption and fraud, on the advice of external auditors that action must be taken.
Judge Chris Greenland, former acting chief executive officer, says that the fund has problems with regard to the speed with which disputes are settled. “Justice delayed is justice denied,” says Greenland.