Mantelli’s v Air Chefs: Allegations of fraudulent affidavits

Conduct of attorney as commissioner of oaths questioned.

Five months after Simon Mantell, owner of Mantelli’s Biscuits, brought suspicions of fraud, forgery and uttering to the attention of the South African Airways (SAA) board, the attorney at the centre of the matter is still representing SAA subsidiary Air Chefs in litigation with Mantelli’s.

SAA confirmed this week that it “initiated an investigation as soon as the complaint was lodged” against Motalane Inc and some Air Chefs employees regarding the commissioning of affidavits. The investigation is still ongoing, and Motalane is still Air Chefs’s attorney of record in the matter.

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Mantell claims the affidavits of Air Chefs CEO Juanita September and David Coyne, a former CEO of Air Chefs, as well as the attorney himself, Emmanuel Mojalefa Motalane, were fraudulently commissioned and the court should therefore never have accepted them as evidence.

He intends to present these arguments before a full bench of the High Court in Johannesburg when the appeal is heard later this year.

Contract award

Mantell’s company won a tender in 2014 to supply salted biscuits to Air Chefs.

Then-CEO Martin Kemp wrote him a letter with the news and congratulations.

But shortly thereafter Air Chefs withdrew the tender and awarded it to someone else.

This action was condemned in three separate investigations, including one by the Public Protector (PP). Since then, Mantell has been fighting for justice and the profits he would have made if Air Chefs had implemented the award.

Sworn statements

The sworn statements currently in question were submitted in a case where Air Chefs sought a review of the PP’s report.

The PP did not oppose the case, but Mantell did. He also requested the court to expand the corrective action recommended by the PP, ordering Air Chefs to compensate him for the costs incurred regarding the tender and to pay him the profits he would have earned over the duration of the contract.

Mantell is claiming R5.3 million for the three years the contract was supposed to last, plus interest since 2017 and his legal costs.

In January, the High Court in Johannesburg dismissed the Air Chefs application, meaning the PP’s report stands, but Mantell did not recover his lost profits.

That’s odd …

Mantell has been granted leave to appeal, and it was during this process that he noticed something was wrong with the commissioning of the affidavits.

“I saw that the stamp was always that of Brian Kgariya, but the signature on the various affidavits differs.” ADVERTISEMENT: CONTINUE READING BELOW

Mantell tracked down Kgariya, who said he and Motalane were previously partners, but he has been practising as Kgariya Attorneys since 2015 – using a different stamp with a different address – and has not commissioned the relevant affidavits. It thus appears that his stamp was used by someone else.

This creates the impression that Kgariya administered an oath to the deponent that he or she is telling the truth in the statement.

Based on this, the court accepts the statement and attaches weight to it, because someone supposedly made the assertions under oath.

If someone else uses the stamp and places their signature on it, that is fraud, forgery and uttering, says Mantell.

The commissioner of oaths stamp as it appears on former Air Chefs CEO David Coyne’s 2022 affidavit. The same stamp was used to commission the affidavit of Air Chefs CEO Juanita September in 2024, but with a different signature. Neither signature is that of Brian Kgariya. Image: Supplied

After he noticed something was off, he examined all the statements closely, including one by Motalane himself. He says it was clear to him that Motalane did not sign his own statement. Someone else did it, he claims.

Trust

The affidavits are extremely important, as the high court did not hear any testimony but decided the case based on the documents submitted – various sworn statements with attachments. Mantell states that several other affidavits have been similarly compromised.

Dr Llewelyn Curlewis from the law faculty at the University of Pretoria says under such circumstances, the court should never have allowed the affidavits – and that this provides grounds to review the findings of the high court.

The Legal Services Council is mandated to investigate what has occurred in the legal practice, and the principal and even the clerks involved will have to answer for it.

Motalane declined to comment on the matter or say whether this is normal practice in his firm, or if affidavits in other cases have been ‘commissioned’ in the same way.

SAA said it advised Mantell to also report the matter to the police for possible prosecution, the Legal Practice Council for misconduct investigation and possible disciplinary action against the legal practitioners, and the South African Institute of Chartered Accountants (Saica) for misconduct investigations and possible disciplinary action against the accountants implicated in the matter.

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