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04 Jun, 2020
Bantu Holomisa writes to Wesbank CEO Chris De Kock re Mr Mzukisi Ndara’s case
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. Quo Vadis? 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. Yours sincerely Mr Bantu Holomisa, MP UDM President
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01 Oct, 2019
Vehicle financing: Holomisa asks Wesbank CEO some pointed questions
AN OPEN LETTER TO THE CHIEF EXECUTIVE OFFICER OF WESBANK, CHRIS DE KOCK Mr Chris de Kock Wesbank Chief Executive Officer Enterprise Road Fairland 2170 Dear Mr De Kock ALLEGED CORRUPTION IN MOTOR VEHICLE SALES: THIRTY MORE PEOPLE CONFIRM SEEMING FRAUDULENT TRANSACTIONS INVOLVING WESBANK FINANCING 1. Introduction Our meeting of the 10th of May 2018 regarding Mr Mzukisi Ndara’s complaint and subsequent correspondence refers. You will recall that I addressed an open letter to you in May last year that contained serious allegations of impropriety and possible fraudulent misconduct occasioned by officials that were acting on behalf of FirstRand Bank, trading as Wesbank. The vehicle sale deal that was concluded with Mr Ndara, on the face of it, carried fraudulent misrepresentations that have led to untold financial harm and prejudice to him and his family for fifteen years; this year. The letter I wrote to you was also posted on my social media platforms provoking a flurry of activity largely condemning the conduct of the bank. 2. Context You consequently invited Mr Ndara and I to a meeting to discuss this matter further. We met at Wesbank’s headquarters at Fairlands in Johannesburg. Apart from you absolving the bank of all responsibility, and partly blaming the dealership, you were unable to debunk the authenticity of what Mr Ndara contended. Instead, pursuant to him narrating what had transpired, during and post the conclusion of his vehicle sale deal you said that “if it is true what you are saying, and its accurate, then I must sympathise with you because you will have been done a grave injustice”. In order to eliminate in your statement, the suspensive condition “if” Mr Ndara took the trouble to furnish your legal officer, Mr McLellan, with the documents that relate to his matter, his utterances when he saw them, was “it is the first time I am seeing these documents”. This is yet another statement that begs the question: Does FirstRand bank value its reputation as a corporate citizen in this country and if so, why doesn’t it redress what are clearly gross violations of Mr Ndara’s constitutional rights? Sir, I have had to answer this question myself. Shocking as this may be, scary as this may sound, the balance of probabilities points to Wesbank having used this approach as its modus operandi to seemingly swindle a significant number of South Africans from their hard-earned money. It came as a shock to the system, when Mr Ndara told me that Mr Prishen Ramsamay and Mrs Cheryl Moosa contacted him to say that they had been trying to locate him since the time I had posted the first letter to you. There are now at least thirty other people who have been party to vehicle sales transactions borne out of alleged fraudulent misrepresentations; destroying many people’s lives in the process. All these seemingly fraudulent transactions that were initiated at the BMW Melrose Arch Dealership in Sandton were predictably all financed by Wesbank. The shocking details of some of these transactions are contained here below. This group of ordinary South Africans whose demographics constitute a rainbow nation, have come together under the banner “Crusaders for Justice” Stop Bank Corruption. 3. Legislative framework In my first letter to you, whilst I am by no means a legal eagle, I ventured an opinion that asserts that, on the face of it, you do not require intimate insights of jurisprudence to understand that a bank cannot approve finance for a new car and the customer receives and pays for a used vehicle, in order to discern fraud. Surely it is not that difficult. My opinion aside, the first reason that points to Wesbank having possibly gone rogue is simply the nature of the transactions they have concluded with the members of Crusaders for Justice. Some of these transactions have violated so many provisions of the National Credit Act of 2007 and its forerunner, the Credit Agreements Act of 1980. The National Credit Act (Act No. 34 of 2005) Section 90 is entitled: “Unlawful provisions of Credit Agreement” and it reads as follows; 90. (1) A credit agreement must not contain an unlawful provision’ (2) A provision of a credit agreement is unlawful if – (a) its general purpose or effect is to – (i) defeat the purposes or policies of this Act; (ii) deceive the consumer; or (iii) subject the consumer to fraudulent conduct; (b) it directly or indirectly purports to – (i) waive or deprive a consumer of a right set out in this Act; (ii) avoid a credit provider’s obligation or duty in terms of this Act (iii) set aside or override the effect of any provision of this Act (iv) authorise the credit provider to; (aa) do anything that is unlawful in terms of this Act; or (bb) fail to do anything that is required in terms of this Act; (e) it purports to make the agreement subject to a supplementary agreement, or sign a document, prohibited by section 91 (a) (g) it purports to exempt the credit provider from liability, or limit such liability for- (i) any act, omission or representation by a person acting on behalf of the credit provider. In summary, all these provisions refer to a credit provider, and in everyday language a credit provider referred to above is a bank. Banks in terms of the law must not violate any of the provisions above. Hence, we can boldly say, FirstRand Bank has seemingly broken the law in many instances and on many occasions. The Bank is not above the law. 4. What has the bank done? Wesbank’s modus operandi is as follows; at least according to the lived experiences of the members of Crusaders for Justice; • Most people were induced into these unlawful deals or contracts; the National Credit Act also deals with inducement as being unlawful. • There are seemingly fraudulent misrepresentations in most, if not all these deals, with the following examples: ? The dealership processed a car for finance as if it is brand-new and this is approved by the bank, yet the vehicle is used. The consumer is invoiced for a brand-new car, whilst the dealership agents and the bank are aware that there appears to be misrepresentation; in fact, there is alleged fraud (as in Mr Ndara’s case). ? There is a member of Crusaders for Justice, who was a first-time buyer but, in his contract, the bank purports that he traded in a vehicle and yet that is not the case (as in the case of Devy De Klerk). ? The most common of these alleged unlawful practices, we have come to learn, is what is called loading or adding onto the price of a vehicle, what is normally known as “extras”. An extra in a vehicle, is a material enhancement the customer requests of his/her own volition over and above the cost of the vehicle i.e. an additional item, at an additional cost. Extras under normal circumstances would be things like cruise control, bull bars, metallic paint, sunroofs, air-conditioning, boot spoilers, etc. The buyer would then be advised of the price of each of these extras so that he/she can make an informed decision on whether it was desired. Some members of the Crusaders for Justice had all manner of extras added on to their contracts without them even knowing that they were so-called extras. These include Group Life Insurance at R25,900 (M Ndara) and a digital braking system at a cost of virtually R60,000 (Cheryl Moosa). In some cases, some of the contracts were padded with these fictitious extras to an additional total amount of R150,000 per vehicle. ? The National Credit Act also refers to consumers being induced into signing supplementary agreements, as if these were obligatory. And, unwittingly through trust and naivety, people sign only to find they are being defrauded and further prejudiced. There are some that are paying instalments of R30,000 for having concluded car deals, in some cases up to R50,000 (Mr Siva Pather). Sir, I have taken the trouble to write to you again. As previously, giving you the benefit of doubt to say, you may not be aware, maybe Mr Ndara’s matter was an isolated incident. However, with these latest revelations, nothing can be left to chance. This needs to be probed as it now comes across as a deliberate and planned scheme to rob people who least suspect that a reputable bank is capable of such. 5. Do the banks know? I have in my possession a High Court judgement handed down on the 16th of May 2013 by the KwaZulu-Natal High Court, in Durban, Case No 2142/2009 in the matter between: FIRSTRAND BANK LIMITED t/a WESBANK as plaintiff and DUAL DISCOUNT WHOLESALERS CC as defendant. In a nutshell, Wesbank in this case took to court a dealership in Durban that had misrepresented the price of a vehicle, as a result of which Wesbank paid more than the value of the car and ended up charging a consumer through instalments more than what the car was worth. Simple and straightforward. When the consumer discontinued payments the bank repossessed the vehicle and, in that process, discovered that in this contract there was fraudulent misrepresentation regarding the price of the vehicle, so they invoked what is called a “master agreement” that regulates transactions between dealerships and banks. These master agreements ironically protect the consumer against such conduct. Needless to say, Wesbank was successful in this action and the dealership carried liability. What defies logic is the principles that underpin this case have not been applied to all these complaints lodged by this group of people. And this is clearly a precedent that demonstrates what should obtain and what steps should have been taken against all dealerships by the bank. 6. Conclusion In our meeting you harped on the fact that you have a judgement against Mr Ndara on case number 3180/2013 underway at the Grahamstown High Court, wherein on the 3 March 2015 Judge Elna Revelas upheld the bank’s Special Plea of Prescription against Mr Ndara’s application against the Bank. Further to that, the Bank obtained a judgement on the 18th of August 2015, dismissing Mr Ndara’s Application for Leave to Appeal Judge Revelas’ decision. A new team of lawyers for Mr Ndara discovered in May 2018 that the judgement the Bank had obtained in August of 2015 was sought through underhanded means, it was erroneously sought and granted in the absence of Mr Ndara’s legal team and without even a Notice of Set Down served on them. Invariably it was set aside by Judge Buyiswa Majiki in August of 2018. The Bank’s appeal of the same judgement was dismissed with costs on the 12th of March this year. Sir, with due respect, is all this necessary? What do we make of the sacrosanct corporate governance associated with the banks in this country which you purport to subscribe to? It is now an open secret that Mr Ndara’s saga is a drop in the ocean, as clearly there are many, many others whose documentation is in our possession. I am now appealing to the shareholders of FirstRand Bank to assist you to do what is right for the benefit of us all. Redress for all these people who have been done wrong is the first step in my view that is non-negotiable. I also call upon the South African public, political and leadership of all self-respecting organisations to call out First Rand Bank for these unlawful acts against ordinary citizens. The all-round condemnation of anyone who was involved in the VBS scandal is commendable. Corruption is corruption by any other name, so let us join the call for Wesbank to be held accountable and answer openly and honestly to these accusations. After all, Wesbank operates on a license granted by government, and is regulated like all other companies in this country. Mr De Kock, I shall eagerly await your response to this matter before we take it further. We look forward to your response. Mr Bantu Holomisa, MP UDM President
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04 Jun, 2018
Round 2 of Mr Ndara’s ordeal with @WesBank. #WesBank vacillates on the immoral alliance between banks and car dealers. Where to now Mr De Kock?
Dear Mr De Kock EXPRESSION OF CONCERN: CONDUCT OF THE BANK IN THE MATTER OF MR NDARA The email from Mr Mahoney to Mr Ndara dated 29 May 2018 bears reference. Mr Ndara has since brought the contents of this email to my attention, which came as a complete surprise. I had simply requested Mr Ndara to establish the exact date for the agreed upon meeting with Mr Mahoney where all parties would be present to take this discussion forward. I had already received communication from WesBank confirming the same, seeking suitable dates for all concerned where the dealership employees would also be present. The initial view was to meet in East London, but we were later advised of Gauteng as an alternative venue and we chose the latter. Subsequently there was an undue delay upon which I asked Mr Ndara to follow up. In his email, Mr Mahony also advised that the dealer could not engage in a meeting whilst Mr Ndara was present, yet he was present in all other meetings, there seems to be something very strange going on here? DISCUSSION I must admit that this whole episode has left me perplexed. You ought to remember that in the first instance our meeting was not informed by a change of heart on the part of the bank, but it was in reaction to the exposure of the situation in the public domain. Hitherto you have not offered anything contrary to what the complainant has presented. You, and legal counsel, confirmed that either parties do not even know and had not seen papers related to this matter and yet you pronounced on how the bank have done nothing wrong in as much as you pleaded ignorance in our presence. The dealer is clearly defying your suggestion that “we get their side of the story” and strangely for us, who are from the outside looking in, this meeting was supposed to clear Wesbank and therefore confirm that it is the dealer who may be at fault. So, when the meeting is in the balance what do you really expect us to think? Here is what comes to mind: • Should the meeting proceed, the bank knows that it is in an untenable situation as the facts are not in dispute. • Now that we have presented WesBank with the necessary documents, which proves that in your own words, a grave injustice was done, there suddenly is backtracking regarding the meeting. • There is an illogical proposal to exclude the complainant from the discussions. • As the person who brought this into the public domain, and as such initiated these discussions, I still await communication from you that unequivocally confirms WesBank’s position. • Similarly, if there is none forthcoming I shall assume this sudden change of events has your stamp of approval. • The assertion about WesBank not having done anything wrong is increasingly, without merit given the posture of the bank. WAY FORWARD Sir, I would like to reiterate that our meeting on the 10th of May 2018 was not informed by a meeting of minds or a change of heart. You yourself mentioned in the meeting that the matter has dragged on for such a long time and that it has been a source of frustration. Now that I have satisfied myself that, whilst I gave you the benefit of the doubt, you have chosen to demonstrate that you do not take this matter seriously, I therefore take this to be an invitation to see how best to deal with this matter and that you are no longer open to discussion in an environment that will safeguard the bank’s reputation. I shall henceforth petition the institutions that should by law take an interest in this matter, as well as other institutions that by their virtue are there to advance our constitutional democracy and the justice that we seek for all. I appreciate having engaged with you and look forward to further engagements albeit on different platforms. Yours faithfully Mr Bantu Holomisa Member of Parliament President of the United Democratic Movement
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11 May, 2018
Open letter to Wesbank CEO re meeting about banks and car dealers’ relationships
Dear Mr De Kock LETTER OF GRATITUDE Our meeting of the 10th of May 2018 refers. I wish to express my gratitude that you convened us in the manner that you did. We are particularly grateful that you took time out of your busy schedule to prioritise this matter and to listen to us and allow us to engage with you. I believe it was a worthwhile and valuable exercise, where both sides of the story were expressed and pondered. Given yesterday’s deliberations it also became quite evident that something was amiss; all considered there is certainly a problem that needs to be attended to. 1. Observations Against the backdrop of the meeting I would also like to make the following observations: • I noted your firm response that the bank is not responsible or that it cannot be held accountable for the dealer’s actions. • As a layman, I had difficulty staying abreast of your perspective in this instance. The reason being that at all, if not most dealerships, there are bank representatives, who actually perform and participate in the acquisition process of a vehicle, liaising with and on behalf of banks. • It hence becomes difficult for me to grasp if the bank will now want to exonerate itself, when there is a problem. • Mr Ndara outlined to all of us in detail how the problematic deal came to be. I must say again I appreciate your frankness when you responded to him by saying “If what you are saying is true and accurate, then I must sympathise with you because you will have been done a grave injustice” • In all honesty anyone who would hear and intimately understand how the deal was concluded, can only sympathise with the situation in which he now finds himself. You will have noted the scathing comments made on my social media platforms; it was clear that the majority of responders either sympathised or empathised with him. • The other significant point that came from the meeting was that, he could have obliged and continued to make payments towards the vehicle, and had he not spent it on lawyers perhaps he would have settled the balance of the debt, but the principle superseded all. • In fact, Sir, Mr Ndara did not take a decision to pay himself. His lawyer at the time, Mr Ben Du Plessis, based in Pretoria, wrote to the bank in October of 2007 requesting documentation that de facto amended or cancelled the original agreement of 2004 that had been signed by both parties. When a month went by without a response, he advised Mr Ndara of his rights in terms of payments especially in view of the two reloaded agreements. 2. Facilitation of a meeting with the dealership I also believe that in view of master agreements between banks and dealerships, it is rather unfortunate that in this case the bank and the dealership worked together in the courts pursuing Mr Ndara. That is what makes me rather uncomfortable with your having to preside over the matter. Nevertheless, now that you have made this suggestion and also your response to Mr Ndara’s narration I do believe that you are engaging with us in good faith. I would therefore suggest that you proceed and arrange the meeting with the dealership so that everyone involved is present. Given that this is a credit agreement and to give more clarity and to lend credence to the meeting, you must also invite a representative from the National Credit Regulator, the custodian of credit agreements. Such a move would allow all of us to gain clarity and help us to move in the right direction. This by no means stops anyone who wants to go to court, but in the spirit of yesterday’s meeting I believe it is very important that we meet as such. 3. Way Forward At the end of the day, the bank is licensed to operate and as such it is obligatory that it also operates within the parameters and conditions of the license that it has been granted. We have various bodies like the Parliamentary Committee on Finance, the Financial Services Board, Ombudsmen, National Treasury, the Department of Trade and Industry and the Reserve Bank Disciplinary Committee who may take a particular interest in this matter. However, given our engagement yesterday I am convinced if we soberly apply our minds we may well be able to find one another here, as we are not only dealing with our opinions but more fundamentally we are also dealing with the laws that govern this country. As a member of parliament and the president of a political party it is my duty to see this matter through. I have no intention of abandoning this process. I intend to follow through until this matter is resolved either way. Once more I appreciate your leadership yesterday and I look forward to further engagement on this matter. Yours sincerely Mr Bantu Holomisa Member of Parliament President of the United Democratic Movement
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02 May, 2018
Open Letter to Wesbank CEO re corruption in motor vehicle sales – immoral alliance between banks and car dealers
Mr Chris de Kock WesBank Chief Executive Officer Enterprise Road Fairland 2170 Dear Mr De Kock CORRUPTION IN MOTOR VEHICLE SALES – IMMORAL ALLIANCE BETWEEN BANKS AND CAR DEALERS Background 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 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. Yours sincerely Mr Bantu Holomisa Member of Parliament President of the United Democratic Movement
