(John McCann/M&G)
For five years, the National Prosecuting Authority (NPA) defied a court order to arrest businessman Howard Mashaba for defrauding Mercedes-Benz of nearly R22 million in unpaid instalments for 11 buses.
The buses form part of Mashaba’s transport business operating mainly in Limpopo and Gauteng.
This week, NPA spokesperson Phindi Mjonondwane confirmed to the Mail & Guardian that Mashaba was supposed to be arrested after a July 2019 Johannesburg high court contempt of court order against him.
Mjonondwane further admitted that the prosecuting authority had been duped by Mashaba when an attempt was made to arrest him after he sent a “false” notice of an appeal application indicating an intent to challenge the July 2019 order, which would have suspended the conviction had it been true.
Moreover, Mashaba has repeatedly defied the bail conditions imposed on him in October 2019, in a separate matter, after he allegedly failed to disclose previous convictions against him in another fraud case he faces.
This week, the M&G established that Mashaba does not reside at the Atteridgeville, Tshwane, house he listed during his October 2019 bail hearing.
He has also failed to report to the Atteridgeville police station every Monday and Thursday, as ordered by the Johannesburg specialised commercial crimes court, sitting in Palm Ridge in Ekurhuleni.
The convicted fraudster did not appear in the Palm Ridge court as scheduled on Tuesday for his failure to disclose past convictions after allegedly being involved in a car accident.
Two sources within the NPA and one in the South African Police Service (SAPS) said Mashaba’s alleged no-show in court this week was the result of the questions sent by the M&G to the prosecuting authority on Monday on whether it would arrest the accused — after failing to do so for five years — when he arrived in Palm Ridge.
“There is strong evidence that senior state officials have protected Mashaba. That is why he has not been arrested for five years.
“It is also why the NPA did not oppose bail for Mashaba when he showed up in court on 14 October 2019,” said one source, who asked to remain anonymous.
“At his next court appearance, Mashaba’s lawyer [Kagiso Magampa] will have to bring an accident report from the SAPS or traffic police as proof. A warrant of arrest will also be dispatched, should Mashaba not show up again,” added another source, who also spoke on condition of anonymity.
Mashaba is scheduled to appear in court again on 12 April.
Mercedes-Benz South Africa’s financial services department initially received a settlement agreement endorsed by the high court in December 2018, stating that Mashaba — through his company Xilumani Holdings and Projects — had to pay an immediate amount of R600 000.
After that, the court-ordered settlement said, Mashaba was to pay an additional amount of R200 000 a month on top of his R150 000 instalment for November and December 2018, as well as January 2019.
The court added Mashaba would pay R150 000 a month until his final payment date of 20 October 2022. However, the judgment found that he failed to pay in line with the order.
“In February 2019, warrants of executions were obtained against the first respondent [Xilumani Holdings and Projects] for failure to make payments as stipulated in the [December 2018] agreements,” wrote Judge Cassim Sardiwalla.
He added that Mashaba managed to overturn the warrants of arrest through a Polokwane high court application, which also ruled that the three buses the police seized in April 2019 had to be returned.
But Sardiwalla, in his judgment, said Mashaba failed in his affidavit to indicate “a factual inability to comply with the court order”.
“It is evident from the papers that the parties have been embroiled in extended litigation and that the relationship between the parties is acrimonious. The applicants [Mercedes-Benz] aver that the second respondent [Mashaba], who is the only member of the first respondent, is aware of the court orders and has failed to comply,” the judge asserted.
“The court is also cognisant of the fact that these court orders were as a result of agreement entered into by the parties … [Mashaba and his company] also did not succeed in creating a reasonable doubt as to their non-compliance with the being wilful and [in bad faith].
“Therefore, there cannot be said to be a reason, or even a possibility, of the respondent’s inability to comply with the order,” Sardiwalla added.
He ordered that Mashaba be imprisoned for 30 days for contempt of court while the parties litigate the remainder of the money owed to Mercedes-Benz.
However, three months after the ruling, not only did the NPA not arrest Mashaba, but the authority did not oppose bail during his hearing in October 2019.
However, this week the NPA’s Mjonondwane said the authority had brought the July 2019 order to the court’s attention and arranged for Mashaba to be arrested.
“Later, the accused was released after the sheriff was presented with a false notice of appeal. But [the sheriff] let him [Mashaba] go after receiving a false notice of appeal that was forwarded by Mashaba’s advocate, who purported that it was from the high court,” she said, without revealing who Mashaba’s advocate at the time was.
Asked whether the NPA had charged the advocate for the alleged fraud, Mjonondwane said the authority contacted the office of the high court registrar and confirmed there was no notice.
“The issue is still under investigation but the lawyer in question has since been struck off the roll of legal practitioners. Once investigations are finalised, we can then make a decision,” she added.
Meanwhile, sources close to Mashaba revealed that, at the time he was supposed to be in court on Tuesday, he was at another company he owns in Tshwane which buys and sells cars.
According to internal information from Mashaba’s company Xilumani Motors, he was organising the sale of a 2016 Ford Ranger for R220 000.
“Apparently he buys cars that were involved in accidents and sells them at a dealership owned by him in Pretoria West. This is where he was for most of Tuesday when he was supposed to go to court,” said the source, who asked to remain anonymous.
“[Mashaba’s] advocate and attorney were trying to deliberately delay the matter. They are hoping to bribe someone but it’s impossible for them to achieve their goal,” they added.
Advocate Kagiso Magampa, who represents Mashaba, did not respond to questions from the M&G. The publication also sent questions to the SAPS on whether it had been informed about assisting the NPA with arresting Mashaba.
This was in line with the July 2021 constitutional court ruling that cited Police Minister Bheki Cele as a respondent and ordered him to arrest former president Jacob Zuma after he was found in contempt of court for not showing up to the state capture commission to testify.
Chief Justice Raymond Zondo, who chaired the commission, took Zuma to the country’s highest court after the former president ignored summonses to appear before the inquiry.
The police service had not responded to the M&G’s questions by the time of publication.