Mr Chris de Kock
WesBank Chief Executive Officer
Dear Mr De Kock
CORRUPTION IN MOTOR VEHICLE SALES – IMMORAL ALLIANCE BETWEEN BANKS AND CAR DEALERS
In November of 2004, a senior government official, Mr Mzukisi Ndara is induced into buying a 2004 Nissan X-Trail 2.2 Diesel S.E. with approximately 7,000 kilometres distance travelled on the odometer, with a registration number DFR 613 EC.
Mr Ndara was led to believe by the Dealer Principal, Jean Van Aardt, of Datnis Nissan in King Williamstown, that he offered him a “special deal” as a form of redress following a complaint of dishonest and unethical conduct by an employee, Sandra who was reporting to Van Aardt at the time.
This deal was concluded on the 25th of November 2004 and financed by the FirstRand bank trading as Wesbank. Mr Ndara brought this matter to my attention, with the words, “General I have been everywhere in the last twelve years now I come to you seeking your help”.
Whilst I am not a legal practitioner nor a judge for that matter, having gone through the documentation pertaining to this deal, it is not only an insult to Mr Ndara but to the people of South Africa in general, that FirstRand bank (t/a as Wesbank) and the Datnis Nissan dealership still have trading licenses and continue to operate and do business in this country.
A former Judge President and an eminent jurist’s reaction on the matter when confronted with the facts in 2013 was that “this is so immoral, this does not even belong in a Court of Law, this should be published in order to embarrass those responsible and to hold them accountable”.
Thirteen years down the line, in 2018, Mr Ndara has absolutely nothing to his name, instead carries a mountain of debt, owing to this saga and is also subject to harassment, threats and near financial ruin owing to what happened to him on that fateful day in 2004. What was a beginning of promising career in the public service back in 2004 turned into a lingering nightmare.
Several of our public and private institutions, who have been privy to this damning story, that has been ruthlessly carried out with utmost arrogance, bravado and downright impunity, have failed this man.
The Banking Association of South Africa, The National Credit Regulator, the National Treasury, the Motor Industry Ombudsman, and some media houses are aware of this.
On discovery that this deal may have been concluded fraudulently Mr Ndara opened a case of fraud with the East London branch of the Special Commercial Crime Unit (Hawks) in March 2014. The case number is KWT Case No. 386/05/2014: SCCU Reference: 1/1/2-24/2004. At the National Prosecuting Authority (NPA) the case was assigned to one Advocate Tenjwa Sellem who incidentally holds a Masters Degree in Law and boasts 18 years’ experience. A criminal investigation by Sellem working with Captain Dyasi of the Hawks found prima facie evidence of fraud to be ventilated in court.
A decision to prosecute and make arrests was made by Sellem following the six months investigation. Warning statements had already been obtained from the accused. To Mr Ndara’s disillusionment this decision was overturned by Sellem’s immediate supervisors Advocates Deshriee Naicker and Theunis Goosen on the basis that the elements of fraud were an honest mistake and that Mr Ndara had suffered no prejudice. In fact, Advocate Goosen contended in writing that a car can be deemed new and used at the same time. Mind you, the NPA is an institution that is expected to prosecute without fear or favour. This decision was taken against the backdrop of clear, damning and undisputed evidence in the docket.
The Special Deal
The Dealer Principal, Van Aardt offers Mr Ndara a special deal to appease him for a wrong committed against him by an employee of Datnis Nissan.
Unbeknown to him and in his first six months in government employ at the time, he is duped and falls for a scam that was to cost him two properties, vehicles and a clean credit record. His only offence was trust and benevolence.
The so called special deal amounted to the following;
• A used 2004 Nissan X-Trail 2.2 Diesel Manual, was sold for a price of a brand new 2004 Nissan X-Trail 2.5 Petrol Automatic.
• The deal was processed by the bank relying on what is clearly a fraudulent Offer to Purchase document bearing no signature of Mr Ndara.
• The bank approved financed for a brand New superior vehicle worth R 29,7990.00 and still delivered a used inferior model, knowingly worth R 27,0000.00.
• In addition to this Mr Ndara was also charged as part of the purchase price, “extras” that are fictitious to the tune of approximately R 35,140.00. Incidentally these “extras” of which R 25,900.00 is a Group life insurance…. R 6,190.00 is another insurance… R 1,060 is a courtesy car…All improbable and are NOT extras just gimmicks to increase the retail price…. FRAUDULENTLY.
• To top it all, the on the finance side, whilst he had a very good credit record with a secure employment he was charged an interest of 15,25 fixed and yet Wesbank had an agreement with government called the Wesbank Senior Manager Scheme that financed any official of government employed at the level of a Director upwards an interest rate of 9% finance charges.
• All this amounted to an instalment of R 8,000.00 for a used Nissal X-Trail over 13 years ago. Incredibly even if once were to buy today the 2018 Nissan X-Trail top of the range they wouldn’t pay that instalment.
• Furthermore, whilst he had been assured the special deal would mean that there will not be a burden from trade-in of his 2003 Nissan Almera and yet an amount of R 27,000.00 was added on to the X-Trail unbeknown to him.
Wesbank leadership starting with your predecessor, Brian Riley abdicated all responsibility in full violation of the laws of this country. It is quite clear that no due processes or even Wesbank’s own policies were followed in concluding this deal and yet the bank approved it and sold this vehicle to Mr Ndara under these horrendous and unlawful conditions.
On receipt of a letter of enquiry about the price from Mr Ndara in November 2005, instead of cancelling this deal, the Office of the CEO at Wesbank chose to continue this deal and to amend the conditions of sale, under the pretext that they were assisting him. Notably whilst Mr Ndara was ignorant of the fraud at the time, he wrote in the conclusion of this letter that “I want out of this contract, so that I could have my life back”. This was ignored by the bank and they chose to extend the period of the contract and adjust the interest rate in full violation of the Credit Agreements Act of 1980, which by the way is a criminal act that carries a prison sentence.
In January 2007 Mr Ndara wrote another letter complaining bitterly about this contract and the inclination by the bank to “make profit out of an unsavoury situation” the bank again chose to undertake another “reload” and consequently this one vehicle now has three different account numbers which I reiterate is against the laws of our country. Hence my contention earlier that this company should no longer be doing business in South Africa.
On being served with legal papers alleging fraud and seeking damages, the bank has had the audacity to argue that the matter has prescribed, de facto arguing that a criminal act has prescribed. This matter has called into question many of our institutions designed to protect the vulnerable precisely against such unwarranted and callous treatment of ordinary South Africans by elites in this country. It is equally shocking to learn that as part of Case No. 3180/2013 Mr Ndara gave evidence narrating all of the above and the record of these proceedings as I write this is missing from the Grahamstown High Court, as it is detrimental to the bank ‘s case and contrary to a judgement that was given against him upholding prescription. In the same vein, the same contract is not deemed to have prescribed in the East London Magistrate Court when the litigants are the bank.
Implications for our constitutional democracy
The South African Constitution is hailed in Africa, and around the world as one of the best, precisely due to its founding values, ethos, a slew of rights (including the Bill of Rights) that assure each one of us, of dignity, shelter, access to healthcare, education and justice …just to name a few. As a constitutional democracy, we are made to understand or led to believe, that the extent to which our beloved country is ahead of the pack, is premised in the main, on the healthy tension or contestation amongst, the Executive (led by the President), Parliament (led by the Speaker) and the Judiciary (led by the Chief Justice), with the rights of the individual as the centre of it all.
All in all, how do we sustain the confidence of ordinary South Africans, in the belief and the durability of our democracy and its institutions. Clearly for Mr Ndara whatever hope and aspirations he had, have waned considerably given a heart wrenching, devastating and ruthless episode by the FirstRand Bank that has gone out of its way to enforce what is clearly a fraudulent contract, to his detriment and that of his family for 13 years now.
Our constitution safeguards amongst other values, Human Dignity, needless to say Mr Ndara lost that many years ago, in writing this as an open letter to the leaders of our institutions, this serves to highlight discrepancy of a brand promise of a new South Africa and the lived experience of a nation that tends to devalue the life of an African Child, that makes a mockery of the Bill of Rights, and the “rainbow nation” of South Africa, positioned as a beacon of light and a ray of hope in Africa, and the World.
I therefore call upon you Mr De Kock to occupy moral high ground and resolve this matter with the urgency it deserves. Recently (February 2018) the Sunday Times approached you seeking answers to this, instead you chose to engage a huge Public Relations company to peddle lies and fabrications on your behalf and continue to disrespect and disregard a cry for justice. Your lies included that Mr Ndara himself had insisted on this deal. You also claim that you have since sold this vehicle and yet that is also untrue.
This is one last opportunity for you and your management to redeem yourselves and resolve this matter expeditiously. My expectation is that other institutions mentioned here will fall in line, take responsibility and cease to shield and protect high profile individuals who undermine the rights of ordinary South Africans through greed, corruption with wanton disregard for rights of others who are condemned to perpetual poverty as a result.
Mr Bantu Holomisa
Member of Parliament
President of the United Democratic Movement