Absa may have jeopardised its case against Bob Aldworth, following the disclosure that the bank’s counsel helped frame the charge sheet, report Mungo Soggot and Andy Duffy
THE Amalgamated Bank of South Africa’s (Absa) legal battle with Bob Aldworth has taken a startling twist, with the disclosure that counsel acting for the bank helped frame the charges against its former executive.
Absa’s senior counsel, a former deputy attorney general, helped pen the charge sheet for the state’s fraud case against Aldworth – a procedure which should have been carried out by the state’s own advocates.
The Mail & Guardian has learned that the Johannesburg attorney general’s office has admitted in writing to allowing Etienne du Toit SC help draft a new charge sheet against Aldworth. What makes the choice of Du Toit striking is that he is acting for Absa in its related civil case with Aldworth, who is suing the banking group for damages.
The attorney general’s office confirmed yesterday that Du Toit “approved” the final charge sheet. “If I was offered assistance from such a learned authority I would undoubtedly take it,” state advocate Bradley Smith said.
The new charge sheet is understood to differ substantially from the one it replaces and contains charges that were known only to Absa.
When approached for comment Carl Boden, Aldworth’s attorney, would not deny that there had been correspondence between Aldworth’s legal team and the attorney general’s office “along those lines”.
Legal sources in private practice said that if Absa has handled the charge sheet, the state’s case against Aldworth could be jeopardised. It was “quite improper” for the attorney general to seek the assistance of a lawyer acting for Absa in a related civil case.
“The attorney general is not an ordinary litigant. His duty is to serve the public interest and to ensure that the prosecution is fairly instituted only after independent inquiry,” said one advocate.
The case against Aldworth has been delayed three times and is expected to be delayed again when he appears in court on November 4.
The charges against Aldworth relate to his alleged use of about R414 000 of Absa money for his own personal use in 1993, a charge which led to his dismissal. Aldworth is bringing a civil case against Absa for loss of earnings and other relief. Aldworth returned this year from Britain to face the charges.
Smith, who is assisting deputy attorney general Jan Henner with the prosecution of Aldworth, initially said that Du Toit’s role was “not of tremendous significance”. Du Toit had not made a written submission.
But Smith then conceded that Du Toit was asked to contribute: “His role was one of approval – he approved the final charge sheet … he did provide input and assistance in drawing it up.”
He added that the reference on the charge sheet – Co…/hed/uph/JL/0827 – was similar to that on Absa documentation relating to Aldworth and his co-accused Alan Upham.
Deputy Attorney General Kevin Attwell said it was rare for a plaintiff to help draw up a charge sheet. “We have to draft it, approve it and authorise it. Obviously anyone can give us a document, but if that forms the basis of what we do that’s fortuitous. Etienne is a good lawyer and a very good framer of charge sheets. He’s a man with a proven track record.”
Last week Aldworth published a book on his and three other executives’ experiences with the bank. He paints a picture of a bank that was bent on obsessive vendettas – against himself, British businessman Julian Askin, former Allied Bank chief executive Kevin De Villiers, and former Trustbank boss Hennie Diedericks. Among the book’s threads are numerous suggestions that Absa has exerted excessive influence over the legal system.
The book ends with an analysis of Absa’s demand that Bertrand Hoberman – the lawyer who chaired a commission of inquiry into the liquidation of Tollgate, a company which banked with an Absa subsidiary – recuse himself. The demand followed evidence about the controversial R1-billion Reserve Bank “lifeboat” to Bankorp, a struggling bank that became part of Absa in a series of spectacular takeovers that led to the consolidation of all South Africa’s Afrikaans banks.
Du Toit was unavailable for comment in Kimberley at the time of going to press.
Louw van Wyk, a group executive director at Absa, said: “It is not uncommon to use people in drawing up charge sheets. We originally laid the charges and a lot of the information is with us. But as far as we are concerned it is the state’s case.”