The ethics committee considered the complaint against Western Cape acting judge Pearl Andrews and found it to be without merit. Picture: Supplied
MANYANE MANYANE
A DURBAN-based businessman has accused Western Cape acting judge Pearl Andrews of helping Old Mutual defraud him through a false debt of R240 000 and a R60 million portfolio.
Darius Naidoo, a business, legal and financial consultant, said the alleged fraud happened at the KwaZulu-Natal Regional Court between 2017 and 2020. Naidoo claims the case was brought to the attention of Andrews, who was the magistrate at that time.
Asked for a comment, KwaZulu-Natal Regional Court acting president Meerchand Maharaj said Andrews is currently acting as a judge in the Western Cape and he was unable to respond on her behalf.
Andrews said she was not at liberty to communicate directly to the media. She referred questions to the secretary of the Magistrates Commission, Maritshane Justice Finger, who said Naidoo had launched a complaint against Andrews on the same facts with the Magistrates Commission on January 24, 2023.
Finger said the ethics committee considered the complaint and found it to be without merit.
Old Mutual (OM) instituted legal action against Naidoo in July 2017 for a repayment sum of R156 549, which arose from a franchise agent agreement entered into between two parties in 2013.
OM said it was advised that Naidoo was under-performing. In return, Naidoo instituted a counter-claim against OM for damages to the tune of R400 000 for unlawfully withholding a payment of R83 450.28 as well as payment of R316 549.72 for delictual damages.
However, in September 2020, Andrews ordered Naidoo to make a payment of R142 186.77 to OM. She said the amount would be calculated daily and capitalised monthly at 11.5%.
She dismissed his counter-claim of R316 549.72 for delictual damages.
Meanwhile, Andrews also granted a judgment in favour of Naidoo against OM for repayment of R97 803.23, which is the amount ordered to set off against the amount of R240 000 he received in respect of the establishment and restraint fee.
Andrews ordered each party to pay costs.
Naidoo said the order was improper and resulted in him being a victim of fraud involving R240 000 and a R60m portfolio as well as theft of his business plan.
In his affidavit challenging the ruling, he said this started after he received a summons from Minde Schapiro and Smith, on behalf of OMl, to appear at the regional magistrate’s court for a debt of R240 000 due to resignation.
Naidoo said he contacted the attorneys and requested the resignation they referred to but they failed to provide it.
“The attorneys did not respond. Instead, they applied to obtain a summary judgment using the resignation letter,” he said.
Naidoo added: “Following the refusal of the summary of judgment I then compelled Minde Schapiro and Smith to provide the resignation letter. The court granted that order but Minde Schapiro and Smith violated the court order and applied to amend their pleadings using a forged termination exit form.”
He said the court then allowed the applicant (OM) to amend their pleadings with the forged exit form after they allegedly violated the Promotion of Access to Information (PAIA) Act, as well as the order compelling them to provide the resignation letter.
Naidoo added that the court also allowed the applicant to change the cause of action from a resignation to a termination, causing serious prejudice to the defendant (Naidoo).
“After doing the same and changing the termination date of the contract from September 30, 2015, to November 5, 2015, the applicant failed to move to trial since 2017. On April 1, 2019, magistrate Motala granted a judgment ordering the applicant to paginate and index the file and obtain a pretrial date by May 3, 2019.
“The applicant violated this order and served me with a notice of setdown with a forged stamp (May 2, 2019) which they asked the clerk to write on the notice file not in place. Upon receipt of this notice, I went to the court early and obtained the file. The clerk then informed me of the actions of the attorneys.”
“I then asked him if he would state what he told me on the affidavit and he said he would. He further stated that he did not stamp the notice of setdown and that the attorneys asked him to write down the file not in place on the notice,” said Naidoo.
He continued: “Following this I applied to dismiss the false claim as the applicant has now violated a court order. Upon bringing this application I went to the clerk’s office to obtain a date for my application to be heard. Upon looking into the file I saw that there were three notices in the file with the following court stamps (received date 2019-05-2019 and issued date 27 September 2019).”
Naidoo said in October 2019, he received another forged notice of setdown in the same document. He said the court stamp was allegedly removed and replaced with the sheriff’s stamp dated October 18, 2019.
Asked to comment on the allegations, Minde Schapiro and Smith director Heinrich Crous said the law firm was no longer representing OM. He added that Rosalie Smit Inc. was representing Old Mutual and questions should be referred to the law firm.
“We would suggest that you raise your further queries with the attorney of record to ensure accurate and reliable information.”
However, Rosalie Smit Inc. did not comment.
OM communications manager Nawhal Foster said Naidoo served as an independent financial adviser and was not employed by the company at any stage. She said Naidoo’s attempt to appeal Andrews’ order did not change the verdict after he was ordered to pay R240 000 to OMl.
Foster added that even the Commission for Conciliation, Mediation and Arbitration (CCMA) and the Labour Court had found that there was no merit in his case.
Naidoo said the information was placed before Andrews who overlooked the forgery and ruled in favour of OM. He said her ruling was biased and prejudiced him.
“This order is improper as it is unreasonable for a magistrate to condone the violation of a court order and accept forged documents as facts in an attempt to cover up the violation of the court order.
“Furthermore, she should have referred the matter for a criminal investigation,” said Naidoo.
He said Andrews violated Section 34 of the Hawks reporting guide by failing to report the matter for criminal investigation.
“Due to all the corrupt activities that transpired I engaged with an investigator who informed me that there was bribery and corruption involved. Furthermore, after I complained to the president of the Regional Court, this magistrate (Andrews) took over that position to investigate herself, which is unethical.”