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Fidentia fraud: State must provide details

Sep 13 2013 19:27

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Cape Town - The Bellville Specialised Commercial Crime Court on Friday ordered the State to furnish two men accused of R160m fraud involving Fidentia Holdings with full details of the case against them.

"It is ordered that precise and concise details of the charge, as requested, be provided," magistrate Sabrina Sonnenberg said.

An application was launched this week before Sonnenberg to compel the State to furnish Melvyn Ivor Cunningham, 70, and accountant David Anthony Warren, 42, with full details of the fraud charge.

They are alleged to have presented J Arthur Brown, at the time chief executive of the investment company Fidentia Holdings, with false financial statements that induced Brown to invest R160m in shares in the M I Cunningham Trust, as well as the company, Webworth.

At the time, between 2005 and 2006, Cunningham was a trustee of the M I Cunningham Trust, a director of Webworth, and was Warren Webworth's accountant.

Both are due to go on trial on October 14 in the commercial crime court.

The defence team comprised Mike Hellens SC and attorney Harold Jacobs, for Cunningham, and counsel Ash Ramlaal and attorney Mark Nixon, for Warren.

They lamented that prosecutor Max Orban had persistently refused to answer any questions about the charge sheet, and had told them to 'work it out yourselves."

Orban's grounds for refusing further information were that both men had had access to the investigation docket itself, and that details were adequately furnished in the preamble to the charge sheet.

Another ground was that the charge sheet itself, the preamble to it and the information in the docket gave sufficient information to enable Cunningham and Warren to prepare for trial.

Sonnenberg said Orban's attitude was unreasonable, and that the two accused had a constitutional right to a fair trial, which included sufficient details of the charges to enable them to prepare their defence properly.

She agreed with Orban that Cunningham and Warren did not have an absolute right to information of every detail, but ruled that the charge sheet itself had to set forth adequate details of the charge.

She said the questions were whether the accused request for information was reasonable, whether the information already given was sufficient and whether Orban's refusal to furnish addition information was detrimental to the preparation of their defence.

The crucial question was whether it was in the interests of justice to furnish the two men with the information requested.

She ruled that the request for additional information was in fact reasonable, relevant and necessary.

Orban's refusal to furnish the information was unreasonable, as the fraud charge was involved and complex and because the prosecution had already changed the charge sheet three times.

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fidentia  |  j arthur brown  |  fraud
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