Dear Mr De Kock
MZUKISI NDARA: NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS CONFIRMS “MISREPRESENTATIONS AND CONTRAVENTION OF STATUTES” BY WESBANK
The above subject matter bears reference.
The first time I wrote to you was on 2 May 2018, just over two years ago, seeking justice in the form of restoration for Mr Mzukisi Ndara, and his family. Mr Ndara firmly believed that FirstRand bank was complicit in a fraudulent vehicle sale transaction in 2004 that caused him to suffer irreparable harm. Frankly, I also believed, hence I wrote to you in the manner that I did.
The last of the four letters I have written to you hitherto, was written on 30 October 2019. I concluded the letter thus “I would simply urge you to take this matter seriously by engaging meaningfully and honestly to find solutions. It will not just go away instead it’s going to grow until it is entrenched in the psyche of South African society”. This will now sound prophetic given the latest developments.
The National Director of Public Prosecutions (NDPP) Advocate Shamila Batohi, in a letter addressed to Mr Ndara dated 24 September 2019 (Annexure 1), places Wesbank squarely at the centre of the fifteen-year saga that has severely prejudiced an ordinary family. Mr Ndara unfortunately only received this correspondence on Friday 29 May as it was sent to his old email address.
The NDPP in this letter writes:
“3. Based on my analysis of the matter the fraudulent activities that are the subject of your representations, emanated out of an instalment sale agreement entered into between yourself and Wesbank.
4. Based on your statement filed with the police documentary evidential material as well as the circumstances of this matter, Wesbank and/or its employees committed a breach of contract in the form of misrepresentations and also acted in contravention of various statutes as alluded to in your reports. On the basis thereof, you are, as an aggrieved party entitled to approach courts for an appropriate relief.”
These assertions by the top prosecutor in the country implicating the entity that you lead are now available for public consumption. I have been at pains over the last two years urging you to occupy moral high ground by resolving Mr Ndara’s matter. Time and time again I have been met with denials and apathy.
Fundamentally in our first meeting with you in May 2018, you were adamant that the bank has done nothing wrong and in fact placed the blame squarely on Datnis Nissan dealership. The National Prosecuting Authority (NPA) correspondence points to Wesbank and its officials as the people responsible. The correspondence distils that the two contracting parties are Wesbank and Mr Ndara. No one else.
In the same meeting, after Mr Ndara had taken us through the details of how the deal was concluded and what he had since discovered in hindsight, you were the voice of reason as you said to him “If it’s true what you are saying and it is accurate then I must sympathise with you because you will have been done a grave injustice”.
Those words remained with me and I asked myself what you will do when Mr Ndara’s utterances prove to be true. That moment is now upon us. The NDPP, who has been exposed to the case docket, with police evidential material, various internal reports and Mr Ndara’s presentations, has now confirmed that there is documentary evidence that points to misrepresentations by Wesbank.
It is now time to replace your intransigence with relevance, you need to be abreast of the mood and to confront the reality that your conduct as a corporate citizen has fallen short of what is expected. It is time to accord this ordinary citizen respect, by engaging him to find a solution by sitting around the table.
I am aware that you contemplated settlement on this matter in a letter to the former Chairperson of the Standing Committee on Finance, Mr Yunus Carrim dated 17 April 2019. Paragraphs 3 and 4 of this letter (Annexure 2) read as follows:
“However, your suggestion for me to meet personally with Mr Ndara in an attempt to reach some kind of confidential settlement is noted. The question of who is right or wrong in this matter is not the only issue at stake here. The other issue regards the actions that Mr Ndara, backed by the media could take to further express the anger and resentment directed at Banks based on alleged discrimination over the past number of years.
On the advice of our legal team we have decided it would not be the prudent approach to personally meet with Mr Ndara in an attempt to reach a confidential settlement. As discussed, we have limited appetite to enrich the individual which does not take into account the time and effort that will be required to defend this matter in the courts and the in the private domain”
Gleaning from these two paragraphs these are not the contentions of an innocent party. Gone are the vehement denials of big corporates that dismiss complains with contempt. For that matter whilst I write to you open letters that are transparent, also for public consumption, not once on the four occasions I have done so have you responded in kind.
There is not a single letter where you have taken the public into your confidence regarding this matter and that of the Crusaders for Justice. There are over thirty people who have suffered similar fates to Mr Ndara whose lives are ruined because of the immorality of this bank. In all their cases, their tormentor is Wesbank. Surely we should now call time on this; it is time to do the right thing.
I note, in fact, that you are amenable to a settle with Mr Ndara were it not for your legal team who needed more time to explore if there were any other seemingly unethical avenues to cause him greater harm.
Notably there is again no outright denial. Paramount in your narrative in this letter is the point that “As discussed, we have limited appetite to enrich the individual”. This pregnant statement takes the cake. It says so many things all at once. In fact, I hear you loud and clear, Wesbank has turned Mr Ndara’s life upside down for over fifteen years, he has lost properties and lost all cars he had, owing to this transaction based on misrepresentations.
As such, whilst you “have limited appetite to enrich the individual”, Wesbank has all the appetite to rid people of their hard-earned money and property. Wesbank has had the appetite to impoverish people as has been aptly demonstrated in this case. Will the real leaders of the First Rand Group please stand up. Your silence is deafening.
Judge Buyiswa Majiki in an August 2018 judgement (Ndara and Another v Weir Investments (Pty) Ltd and Others (3180/2013) (2018) at the Grahamstown High Court set aside a 2015 judgement that was in favour of Wesbank on the basis that it was erroneously sought and granted. This has been Webank’s modus operandi, hence Mr Carrim exhorts you to settle this matter.
Judge Elna Revelas presided over a hearing on 18 August 2015 with only the bank’s legal team present. There were no papers served on Mr Ndara and his attorneys. Significantly there was not even a Notice of Set-down. Strangely, Judge Revelas proceeded to dismiss Mr Ndara’s leave to appeal with costs. When the bank’s representatives appeared before Judge Majiki in 2018; they conceded that they did not follow any of the applicable High Court Rules. The bank appealed Judge Majiki’s judgement and it was dismissed with costs around March 2019. A month or so later you wrote this letter to Mr Carrim.
Whilst I applaud the NDPP, unlike Advocates Naicker, Goosen, Mrwebi and Govender she was much more forthcoming on what has really transpired in this David and Goliath battle. Advocate Batohi was prepared to call out the culprits – Wesbank. However whilst she identified the unethical and immoral conduct on your part, she did not have the courage to act (as the law allows her) in the interests of good governance, for justice to be served. That is really disappointing.
2) Whenever any manager, agent or employee of any credit grantor does or omits to do any act which it would be an offence under this Act for the credit grantor to do or omit to do, such manager, agent or employee shall be liable to be convicted and sentenced in respect thereof as if he were the credit grantor.
The above extract is taken directly from the Credit Agreements Act 1980, that was in place when Mr Ndara’s credit agreement was concluded. In my book, “shall be liable to be convicted and sentenced”, refers to a criminal prosecution if one were to have been found to have contravened this statute.
Furthermore, Advocate Tenjwa Sellem, who oversaw a seven-month investigation at the NPA on this matter, took a decision to prosecute and took warning statements. On receiving a copy of NDPP’s letter his response was “If Mr Ndara on purchasing a vehicle through Wesbank, had provided a false representations concerning his salary advice and place of domicile, was he not going to face criminal charges of FRAUD, the answer is in the affirmative”.
He went on to say, in the investigation, evidence points to the following issues that anchor this matter
• Wesbank delivered to Mr Ndara a USED Nissan X-Trail 2.2 Diesel, Manual with 6700 kilometres travelled valued at R270000-00 Then they processed and invoiced him for a BRAND NEW Nissan X-Trail 2.5 Automatic valued at R298000-00.
• Wesbank processed and approved the sale agreement, relying on a fraudulent Offer to Purchase (OTP) that Mr Ndara had never had sight of nor signed. The OTP provided for him to sign firstly to tender his Nissan Almera as a trade in, and secondly to sign making the Offer to Purchase the Nissan X-Trail described therein. Instead Mr Jaen Van Aardt – the Dealer Principal signed on the document accepting an offer that had not been made. Despite the invalidity of the document Wesbank processed and concluded the deal as if it was above board.
• Furthermore Wesbank approved fictitious extras to the value of R33000-00 that do not exist. These were insurance products as opposed to physical material enhancement in the vehicle that would have been requested by Mr Ndara. So in all the vehicle that he would have paid R270000-00 for, he was invoiced for R333000-00.
• The Dealer Principal induced Mr Ndara into this deal under the pretext that he was redressing a wrong committed by a salesperson at the dealership, hence Mr Ndara believed him. He offered to do a special deal that will see Mr Ndara benefit from the Wesbank Senior Manager Scheme that he already qualified for. Noting that Mr Ndara is ignorant of the Scheme’s formula, he loaded 15,25% interest rate instead of 9% that he qualified for. Mr Ndara as a result had R8857 monthly instalment for a USED Nissan X-Trail in 2004, sixteen years ago.
Advocate Sellem ended by saying he stands by his decision to prosecute this matter.
To conclude my letter, Sir, I shall quote from the Regional Director of Public Prosecutions, Advocate Goosen, who was the only prosecutor to write to Mr Ndara giving reasons why they decline to prosecute. Advocate TC Goosen on 11 December 2015 writes as follows:
“It is a fact that the vehicle was described on the transaction details document as a new one. I am of the opinion that this aspect does not assist in making a decision in your favour. Everyone including yourself knew at all times relevant that the vehicle was a demo model and therefore not brand new. Consequently the action to tick the ‘new box’ surely could not have been made with an intention to defraud you. I also consider a possible argument that being a demo model, the vehicle was definitely a used vehicle, but also new in the sense that ti has never been sold before.
Another possible argument can also be that the ticking of the ‘new box’ was a mistake and that the person who made the tick is as much to blame as those who had signed the document.” The car was indeed sold to you at a price consistent with that of a new car.
Essentially because of all that he advances above, Advocate Goosen then concludes that whilst there are all these permutations above, Mr Ndara’s case would not stand scrutiny in a court of law as he will be a single witness. I shall leave these two contrasting versions for your benefit and the public at large.
Once more with all the respect I invite you to meet with Mr Ndara and resolve what is patently a grave injustice. Not only to Mr Ndara, but to all South Africans who believe in natural justice and the rule of law. Sir, I believe you owe this to yourself, FirstRand Bank and to all those who inflicted pain on Mr Ndara and his family throughout these years. It is never too late to mend.
Mr Bantu Holomisa, MP