The South Gauteng High Court in Johannesburg has denied MTN access to financial records in a case against its former executive Robert Madzonga and lawyer Nozuko Nxusani, along with her namesake firm, who are accused of defrauding the telecoms company of R12.3 million over a decade ago.
Madzonga, who is MTN SA’s former chief corporate services officer, is also the former COO of VBS and CEO of its parent company Vele Investments, and is one of the accused in the looting of the mutual bank.
MTN, which is trying to recover the funds in a civil case, approached the high court to compel discovery of Nxusani's and her firm's accounts, ledgers, VAT returns and audited financial statements to assist it in proving its case.
The fact that there are parallel civil and criminal cases concerning the alleged MTN fraud was important in determining the ruling, Judge Stuart Wilson found on Tuesday.
"I do not think that I can allow MTN in this case to secure by means of civil discovery proceedings evidence that may clearly tend to incriminate the second and third respondents [Nxusani and her firm] if it is produced in the criminal proceedings currently pending against them," the judge ruled.
In 2010, while at MTN, Madzonga was accused of authorising Nxusani's firm to do work for the telecoms firm, and arranging payment of R12.3 million despite "knowing very well that they did not render the services that they were contracted to deliver," according to the Hawks. MTN conducted an internal investigation, and the matter was reported to the Hawks seven years later.
A warrant of arrest was issued for Madzonga and Nxusani in December last year and both handed themselves over to the authorities. They were subsequently released on R10 000 bail each.
'Very large rewards'
Advocate Terry Motau found in his report on the looting of over R2 billion from VBS that Madzonga denied knowledge of anything untoward, "he derived very large rewards, much of which was in the form of undeclared income".
Madzonga was previously arrested, along with a range of other accused for the VBS matter, and was released on bail in 2021.