Royal Bafokeng Platinum (RBPlat) had to issue a formal Sens announcement last week to once again refute allegations that the mining company was part of a plot to defraud a small financing company, Ithemba Financial Services. This time it was The Star newspaper that offered Ithemba a soapbox for its most recent attack following a court battle lasting nearly two years.
RBPlat says in the Sens announcement that there is no merit to the allegations of fraud that Ithemba has been touting since late 2017: “RBPlat concluded a written contract with a local construction company on July 20, 2017, in terms of which it would fence an overland conveyor at our operations. The contract was of a limited duration and the contractor was paid all the monies due to it in terms of the contract.
“During December 2017, Ithemba alleged that it had concluded a financing arrangement with the contractor. However, RBPlat was not a party to this arrangement and did not consent to any such arrangement.”
RBPlat approached the court in April last year to seek an interdict against Ithemba to force the company and its proprietor, Themba Buthelezi, to refrain from defaming RBPlat and its directors, and to not continue harassing the company, its directors or its employees.
The court granted the order, but it seems Buthelezi is simply ignoring the court and is continuing his campaign against RBPlat.
Documents filed in the original case in the High Court reveal that Buthelezi has complained to anybody and everybody who would listen to his story.
His latest complaint was to the South African Institute of Chartered Accountants (Saica) on the rather dubious grounds that Saica should investigate six RBPlat directors for fraud because they are chartered accountants and members of the body that oversees chartered accountants.
RBPlat is unfazed by the latest threat and says that neither the company nor the affected directors have been contacted by Saica in this regard as yet. The Sens announcement states that “RBPlat is willing to cooperate fully with Saica when required to do so”.
The facts leading up to the disagreement and subsequent court order seem straightforward: RBPlat contracted a local company, Gootshepa Construction and Projects CC, to erect a fence at its Styldrift mine. Gootshepa was only able to complete part of the work and RBPlat contends that it paid in full for the work that was completed.
It seems Gootshepa approached Ithemba for financing to buy the necessary materials to be able to do the work, but apparently neglected to repay Ithemba. Buthelezi alleges that RBPlat and Gootshepa colluded to defraud Ithemba.
He tried to convince the court that Ithemba was a party to the original contract as he entered into a joint venture with Gootshepa. He argued in letters to RBPlat that payments should not have been made to Gootshepa’s bank account, but to an account that he instructed RBPlat to use. He contends that RBPlat’s failure to pay the money into his bank account amounts to fraud.
RBPlat countered that it never had any agreement with Ithemba and presented to the court the original contract between the mine and Gootshepa. The terms of the contract include, among others, the standard provision that the contractor is not allowed to subcontract the work without the written consent of RBPlat and also that Gootshepa acts as an independent contractor and that “no partnership or joint venture is created by this contract”.
The court accepted RBPlat’s arguments and the documentary proof and granted an interdict against Ithemba and Buthelezi.
The evidence presented to court makes for interesting reading. John Cleese fans would find a lot of the submissions particularly entertaining.
It seems that Buthelezi has no proof that he was party to the contractual agreement. In an e-mail to RBPlat, he laments that the file with all the documents pertaining to the contract were stolen from his offices by one of his own employees, who had been dismissed immediately.
In another e-mail Buthelezi instructs RBPlat to stop all payments to Gootshepa until RBPlat is willing to meet with him to discuss the issues as it “would amount to fraud”.
Despite another explanation that RBPlat only dealt with Gootshepa (this time by Bowmans, acting for RBPlat), Buthelezi sent another e-mail to several RBPlat employees, thanking them for helping him to “resolve this high profile criminal case”.
In another e-mail he says that he has opened a case of fraud against Gootshepa and RBPlat. He says he already had Gootshepa listed on the South African Fraud Prevention Services database and that all their bank accounts have been frozen.
“We would like to request from you the reasons why The Royal Bafokeng Platinum Mine should not be listed for fraud and have all their bank accounts frozen, as they have been equally sighted for fraud,” he writes in the e-mail submitted as evidence in court. “If there is no response, we will go ahead and do the necessary as we are already guided by the Specialized Commercial Crime Unit (Hawks).”
He also threatened to report RBPlat’s directors and employees for fraud and see to it that all their personal bank accounts are frozen.
In February 2018, Buthelezi enlisted the help of an attorney from Kempton Park, Leoni Naude, to claim damages of more than R2 million from RBPlat on the basis of a document said to be a joint venture agreement between Ithemba and RBPlats. The document apparently proved that RBPlat agreed to the change of banking details.
The partly-handwritten document was said to have been signed by Adrian Burn, who Ithemba contended was a director of RBPlat. Burn is not a director (his LinkedIn profile states that he is a senior project manager), and the High Court later accepted that his signature was forged.
In March 2018, Buthelezi threatened Bowmans attorney Bongumusa Sibiya: “I will discuss your conduct with the Hawks, this matter is very serious but your actions amount to deafening (sic) the ends of justice. You have demonstrated your ignorance of dealing with criminal cases. This matter contains both criminal and civil cases, you should have stick to your civil case and stop imposing threats to prevent us from reporting this high profile organised crime.
“There is no interdict that can prevent the prosecution of crime,” he continued. “You are missing the point, you can go ahead with your interdict. Your threats of interdict to prevent crime reporting is another crime of its own.”
Buthelezi also employed the services of a private investigation and debt counselling firm, Standard Charter Management, which issued a letter of demand to RBPlat for the amount of R2 million, pus interest and costs. The letter of demand threatened RBPlats with “attachment of your salary” and property. “We shall seek to have you liquidated,” warns the printed form letter, parts of which were filled in by hand.
Quinton Bailey, senior investigator at the debt collection agency, also threatened RBPlat that a case of fraud had been opened.
The Hawks did not seem overeager to investigate the case. Buthelezi concludes an e-mail to the National Prosecuting Authority by explaining the reason for this: the investigating officer told him that the investigation leads to her superiors, who he says are also part of the fraud syndicate. He alleges that the officers are part of a Nigerian fraud syndicate, and he fails to understand why the Hawks are protecting them. “They are just common criminals trying to run the treasury system,” according to an e-mail he sent to a brigadier in the South African Police Service (SAPS).
Buthelezi also tried to convince politicians to take up his torch. In March 2019 he sent a letter to Paul Mashatile, chairman of the ANC Gauteng region: “I have the utmost respect and gratitude for what the ANC to liberate us South Africans from apartheid and colonial rule. I believed that apartheid and oppression was buried when we voted the ANC in 1994, but unfortunately Royal Bafokeng Platinum Mine has proved me wrong, apartheid is still alive and exist at Royal Bafokeng Platinum Mine.”
It is unclear from court documents whether Mashatile responded to the letter.
Buthelezi believes the amount due to Ithemba has now increased to R3.9 million, including interest, legal cost and loss of business.
Meanwhile, Gootshepa seems to have quietly disappeared – presumably with the money it was paid for the work that it partly completed.