Bungle justice

Along the way the matter sank into a morass of ridiculousness, a comedy of errors, a parody of dodgy endeavours masquerading as justice being seen to be done.

In November last year Noseweek posed the following rhetorical question about South Africa’s  justice system in an editorial: “Whether the accused are guilty or not, when a criminal prosecution has been in process for 16 years, isn’t it time to question the morality, the sanity of it all? That’s apart from questioning the competence of the prosecution, or reckoning the outrageous cost to the accused and the taxpayer.” These remarks were prompted by the (still) ongoing trial, before Judge Brian Spilg in the South Gauteng High Court of Gary Porritt and Sue Bennett, who were arrested in December 2002 and March 2003 respectively on numerous criminal charges related to their management of a company called Tigon (nose229).

A reader brought another relatively recent case to Noseweek’s attention where the same issues led to the termination of a case in the Western Cape High Court:

On 16 May last year acting Judge Rob Stelzner issued an order that 17 cases of fraud and theft against a former Southern Cape attorney, Koos Grobbelaar, be withdrawn and never be instituted again. Grobbelaar’s bail money of R5,000 was returned, his passport handed back to him and he no longer had to report to the police once a week.

Accused attorney Koos Grobbelaar

The order brought finality to a case that started seven years earlier in 2011 when Grobbelaar first appeared in court in Riversdale in the Southern Cape after being arrested by the Stilbaai police. Since then the case has dragged on and on with more and more people joining the list of alleged victims until there were 17 complainants. Yet the police and the prosecuting authority were seemingly unable to finalise the charge sheet. 

The roles of the State and the accused were swapped in 2017 when Grobbelaar filed a case against the Director of Public Prosecution, saying that years of delays had caused him irreversible harm and would continue to do so in the future. And after hundreds of pages of accusations made by both sides, the case against the self-confessed crooked lawyer was dropped and closed forever.

So why was Koos Grobbelaar, 69, able to walk away from 17 charges without even so much as a reprimand? There is no clear answer in the public domain because the parties came to an agreement, subsequently made an order of court, without any oral evidence proffered.

But the outcome of this astonishingly labyrinthine case now stands as a precedent in South African law. Whatever the reason for the unusual delays, the prosecuting authority dragged its feet for years before charging the perpetrator.  Let it not be forgotten that crooks have the same rights as everyone else, especially when they are cognizant of the law.

Grobbelaar says his fall from grace started in 2005 when he took an option on land in Stilbaai where he planned to develop an exclusive estate inside a nature reserve. It was to have been known as Duinekraal and was similar to another very successful development in the area, called Fisantekraal. While several people were persuaded to invest in the Duinekraal project, it never got off the ground.

In Grobbelaar’s 58-page affidavit, accompanied by another 40 pages of supporting documents, he admits he used money taken from his attorney’s trust account to cover the cost he encountered with the development, and that his clients lost millions of rands as a result of what he calls his own shortcomings. (Read: I stole trust money and used it for purposes other than originally intended by my clients, and in contravention of the law relating to attorneys’ trust accounts.)

Grobbelaar claims that the case was postponed countless times since his first appearance in court in 2011. It was also struck off the court roll on more than one occasion because both the investigating officer and the prosecutor did not turn up in court. But what made the case more difficult for the prosecution was that the investigating officer, a Sergeant Piedt, was based in George and most of the witnesses and Grobbelaar’s victims were in Stilbaai and the Swellendam area, 200km away. When his clients heard about his fraud, each one laid charges against him and soon the number of dockets increased from six to ten and then to 17.

In the meantime Grobbelaar was sequestrated, became unemployed and was later forced to apply for legal aid. He was also struck off the roll of attorneys. But he claims he offered his full cooperation at all times, stating that he even informed Sgt Piedt that he was willing to admit guilt on some of the charges.

Then, in an unprecedented move, Grobbelaar convened a personal meeting with the prosecutor, advocate Herman Steyn, in the hope that the case could soon be finalised. But that was to no avail because in 2015 there was still no final charge sheet. Six years after his first appearance in court he had not been given an opportunity to plead on any charge. 

The Legal Practitioners’ Fidelity Fund paid out most of Grobbelaar’s victims to the tune of R2.9 million. According to Grobbelaar the Cape Law Society was able to quickly gather enough evidence to compensate his clients for their financial losses, yet the State was in no hurry to tie up the case. And this, he says, was an infringement of his constitutional and common law rights.

Grobbelaar accuses Prosecutor Steyn of irregular and unprofessional conduct, which resulted in legal costs escalating to such an extent that a friend who had given him financial backing, later withdrew his support.

Perusing Grobbelaar’s affidavit leaves one with the impression that the State has a case to answer.

But that impression fades somewhat on reading Steyn’s counter arguments. In a 55-page affidavit Steyn denies that the State did not move forward with the case. He says Grobbelaar stood accused of theft, fraud and falsifying deeds but the allegations were not as straightforward as Grobbelaar maintained. Steyn said that not all the charges against Grobbelaar originated in the Duinekraal development. Only one was linked to that development while the others were mostly private property transactions.

In two of the cases Grobbelaar acted as the transfer attorney for properties sold either by his clients or to his clients. Amounts of R1.4m and R1.1m were not paid over to the sellers because Grobbelaar withdrew the buyers’ money from his trust account before the properties were registered and legally transferred.

Also not related to Duinekraal were cases where Grobbelaar withdrew trust money and gave false reasons to his clients as to why monies could not be paid over to them.

One case refers to a so-called private loan, which Grobbelaar says should have been part of a civil and not a criminal case. Steyn agrees that there was a loan agreement in place, but says the agreement was only signed after Grobbelaar started withdrawing his client’s money from the trust account. The Law Society later rejected the claim for compensation by the client, a Mr H J van der Watt.

Steyn says he was worried that Van der Watt was withholding information from the investigation and this was another reason why the charge sheet could not be finalised sooner.

About the alleged falsifying of deeds, Steyn explains that Grobbelaar showed the auditor a forged sales contract claiming that two of his clients, a Mr and Mrs Houston, purchased two smallholdings in the Duinekraal development from him. Grobbelaar told the auditor the Houstons paid for these with funds kept in trust with him after they had sold a property. This was false, says Steyn, because Grobbelaar could not sell stands in Duinekraal as the land did not belong to him and, as he admitted, the development never got off the ground.

Steyn also submitted several extracts from the investigator’s diary that showed Grobbelaar did not honour appointments and that he once switched off his phone when Sgt Piedt was supposed to be meeting with him. Another note in the diary refers to a phone call made to a lawyer who denied that he had taken instructions from Grobbelaar. The lawyer said he could not defend Grobbelaar as there was a conflict of interest.

According to Steyn, Grobbelaar’s offer to assist the investigating officer did not help in any way to establish the truth about most of the allegations. For example Grobbelaar wanted Sgt Piedt to believe that he had invested certain funds, which was not the case.

Steyn acknowledges that he was absent from work in 2015 after he had been attacked by a burglar but says the postponements before and after his injury were requested by Grobbelaar.

And so the saga continued, with accusations and counter accusations flung from both sides. In the end an agreement was reached: the State withdrew the charges pending against Grobbelaar, while Grobbelaar withdrew his case against the Director of Public Prosecution. Each party paid its own costs.

This story is a damning indictment of the South African legal system where the potholes along the road to justice enable a self-confessed fraudster to walk away scot-free from punitive redress, while the prosecuting authority just couldn’t make a case stick. Along the way the matter sank into a morass of ridiculousness, a comedy of errors, a parody of dodgy endeavours masquerading as justice being seen to be done.

The Prosecution was unable to firm up a case against a perpetrator who confessed unashamedly to serious fraud and the misappropriation of trust money. The investigating officer was 22km away from those he wanted to question and the perpetrator would not answer his phone. The prosecutor himself was unwell after being attacked by an intruder, while nobody seemed to turn up in court on designated dates.

Throwing in the towel seems to have been the only sane solution; a quick two-part settlement “on the steps of the courthouse”. Nobody goes to jail and the State bears no blame for this breakdown of the system.

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