Ansie Venter has done great work against rhino poachers, though?
Dead Matter (Part One, Two & Three): How political corruption decimated Mpumalanga’s biodiversity
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Richprins
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Re: Dead Matter (Part One, Two & Three): How political corruption decimated Mpumalanga’s biodiversity
How complicated!
Ansie Venter has done great work against rhino poachers, though?
Ansie Venter has done great work against rhino poachers, though?
Please check Needs Attention pre-booking: https://africawild-forum.com/viewtopic.php?f=322&t=596
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Lisbeth
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Re: Dead Matter (Part One, Two & Three): How political corruption decimated Mpumalanga’s biodiversity
It is not fair though, that someone, who has been ruined, has to wait for more than 12 years to get justice
"Education is the most powerful weapon which you can use to change the world." Nelson Mandela
The desire for equality must never exceed the demands of knowledge
The desire for equality must never exceed the demands of knowledge
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Richprins
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- Contact:
Re: Dead Matter (Part One, Two & Three): How political corruption decimated Mpumalanga’s biodiversity
Please check Needs Attention pre-booking: https://africawild-forum.com/viewtopic.php?f=322&t=596
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Lisbeth
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Re: Dead Matter (Part One, Two & Three): How political corruption decimated Mpumalanga’s biodiversity
Fearful witness gives explosive testimony against former deputy president Mabuza
From left: Fred Daniel. (Photo: Supplied) | Former Mpumalanga premier and former SA deputy president David Mabuza. (Photo: Gallo Images / Darren Stewart)
By Kevin Bloom | 21 Jun 2023
The last week of the fifth session of case number 34502/2010, the long-running civil trial that has pitted conservationist Fred Daniel against former Deputy President David Mabuza, was marked by testimony that included allegations of political interference, fears of assassination and details of endemic corruption at the Mpumalanga Tourism and Parks Agency. Oh yes, and another witness gave testimony on an alleged framing attempt. So what does the sixth session hold?
_______________________________________________________________________________________________________________________
‘I think I had to discuss this matter with my advocate, M’Lord,” Bushang Jacques Modipane testified, “because in Mpumalanga during Mabuza’s tenure from 2009, many people in the ANC… were assassinated, and I have reason to be pessimistic about my future – I may be targeted.”
It was 11.10am on 8 June 2023, and the Pretoria High Court had just resumed after an hour’s adjournment. Having run for more than 150 court days and now nearing the end of its fifth session, the matter of case number 34502/2010 was no stranger to such procedural delays – in fact, at the close of the fourth session in September 2022, Judge Cassim Sardiwalla had registered his “disgust” at the defence’s stalling tactics – but this adjournment was different.
The previous night at around six, it turned out, Modipane had answered a call from the man who succeeded him as CEO of the Mpumalanga Tourism and Parks Agency (MTPA), Boy Johannes Nobunga. According to Modipane, Nobunga had attempted to persuade him not to take the stand. Advocate Jacques Joubert, acting for the plaintiffs, had interpreted this as an attempt at “interference with the evidence” and had therefore requested the adjournment to discuss the issue with his witness.
“Mr BJ Nobunga was coming from the ANC,” Modipane explained at around 11.05am, soon after the hearing resumed. “I worked with him in the ANC… and we were together at a later stage.”
After adding that he was surprised by the call, because Nobunga had effectively cut off all contact with him from around 2016, Modipane got to his point – and if there was a sharp edge to his point, it could have been summarised in the identity of the man who was suing the Mpumalanga government for R1-billion, the conservationist and whistle-blower Fred Daniel.
“[Nobunga] then said that, ‘You are going to give evidence in support of Mr Fred Daniel’,” Modipane testified. “And I said, ‘Yes I have been subpoenaed.’ He said, ‘You must be very careful, you cannot work with Fred Daniel, he is not a reliable guy…’ I said, ‘No, no, no, you are making a terrible mistake, I am not going to work with Mr Fred Daniel, I am going to give evidence in court about anything they want to ask me, and if I know something I will tell them what I know.’ ”
By Daily Maverick’s reckoning, given that we had dedicated more than a dozen features to the case, the testimony was already remarkable – never before in case number 34502/2010, which by this stage (including the aborted case management sessions) had run for almost half as long as the Zondo Commission, had a witness been so candid about a current attempt to defeat the ends of justice.
But Modipane, it transpired, was only warming up.
“[Nobunga] then started saying to me that we must not give evidence against the leaders of the ANC,” he continued at 11.07am, “because we are jeopardising the ANC. I said, ‘No, no, if I have to give evidence against the criminal behaviour, I do not care whether it is the leaders of the ANC or not, I am going to give that evidence, and for your information, I do not hold a brief for Mr Fred Daniel, and also I do not hold a brief for Mr Mabuza.’ ”
So there it was: Modipane’s first reference to David Dabede Mabuza – the premier of Mpumalanga from 2009 until 2018; and the deputy president of South Africa from 2018 until March 2023 – who, although he did not appear as either a witness or a defendant in case number 34502/20210, was nonetheless holding a senior counsel on retainer.
“To tell the honest fact,” Modipane offered, “I am very angry with Mabuza because he placed my family into a crisis for nine years now, almost 10 years I am not earning a living because of Mabuza.”
As Modipane had already informed the court, his CV included positions as a member of the first executive council in charge of Mpumalanga’s public finances, a stint as the MEC for safety and security and another stint as the MEC for finance, as well as six years as CEO of the Provincial House of Traditional Leaders before taking over at the MTPA in September 2012.
By referring to the fact that he had not been able to find a position in the public sector since 2014, when his contract with the MTPA was “terminated”, Modipane was effectively stating under oath that the former deputy president had been waging a personal vendetta against him.
More than that, as would be clear from his “assassination” remark at 11.10am, he was also stating under oath that he feared for his life.
Aside from the call the previous evening from Nobunga, Modipane testified that he had received another strange call before six that same morning from a person “who is close” to Mabuza. The witness declined to give the name of this man, but stated that he wanted to know if Modipane was at home and whether he could come over for a “visit”.
Requisitioned documents & fictitious debts
So what was it that former Deputy President Mabuza, by the authority of the court transcripts, did not want Modipane to place on the record?
As an opener to the evidence proper, at around 11.15am, Joubert asked Modipane whether he was aware that his predecessor at the MTPA, Charles Ndabeni, had attempted to “settle” the civil claim that Daniel had brought against the Mpumalanga government back in July 2010.
The significance of this question was clear – as Ndabeni himself had testified in an earlier session of the trial, and as Daily Maverick reported in the first part of our “Dead Matter” series, an internal investigation was concluded in 2011 that confirmed an unlawful and fraudulent campaign against Daniel by senior MTPA staff members with alleged links to Mabuza. Ndabeni, convinced of the truth of these findings, had attempted to compensate Daniel for his damages and bring the perpetrators to book, but instead he had been “compelled” to resign as chief executive of the MTPA in August 2011, well before the end of his five-year contract.
Although Modipane had been denied the benefit of a “handover report” from Ndabeni, he told the court, the MTPA’s executive management had fully briefed him about the attempt to settle with Daniel.
Next, after referring to a proposed “cooperation and development agreement” between Daniel’s former private nature reserve, Nkomazi Wilderness, and the MTPA, Joubert drew the court’s attention to the so-called “Great Nkomazi River Concept Plan” – or, technically, exhibit D-383 – and asked for Modipane’s comment.
“M’Lord,” Modipane testified, “this document… is an integrated concept document, and it falls within the vision of the government of South Africa. It is a document which emphasises that there was going to be a partnership between government and the private sector.”
The witness then went on to state that the plan included the creation of a transfrontier park that would link Nkomazi Wilderness with local provincial reserves and protected land in Swaziland, and that – “if it was implemented” – it would have been a “game-changer” for employment creation, tourism development and nature conservation in Mpumalanga.
“It was Mr Daniel’s evidence,” Joubert put it to Modipane, “that the idea was, if a cooperation and development agreement had been entered into, that this project, or this concept plan, would have been implemented. Do you confirm that?”
The witness responded: “I confirm it, and just one sentence on that. Had this document been supported by government, it would have changed the profile of tourism in the province and also the profile of nature conservation, because it was going to help create jobs. We actually used this document to invite investors to participate.”
Joubert: “And in your experience, what impact would that have also had on the damages claim?”
Modipane: “I think, had we managed to agree, it would have settled those damages. I am very optimistic it would have done that.”
Joubert did not ask Modipane for his opinion on why the agreement was never signed, but he did remind the court that Daniel had already provided evidence that the concept plan was partly an attempt to mitigate the damages.
Was this, then, the evidence that Mabuza (allegedly) did not want the Pretoria High Court to hear?
Perhaps, but there was something else.
About halfway through his testimony, Modipane stated that his own attempt at settling the damages claim had been stifled from early on in his tenure. This was due to the fact, he testified, that he had been informed by his executive management “that all the documents pertaining to that matter [were] no longer with the MTPA [but had] been removed to the premier’s office”.
The testimony was in line with what Daily Maverick reported in August 2022, when – in the context of a series of criminal case dockets that had “gone missing” – we cited page 198 of the MTPA’s 2015/2016 annual report, which confirmed that Mabuza’s former office had taken over the case, although “liability for legal fees” had remained with the agency.
By Modipane’s evidence, therefore, the documents had been in Mabuza’s possession for at least two years before the MTPA admitted as much. And, while this particular detail was not explicitly placed on the court record, what was explicit was Modipane’s memory of his time at the MTPA.
“Did you have any say afterwards in any attempt to try and settle this case?” asked Joubert.
“No,” Modipane responded, “I did not have any say about this case, and I never dealt with this case, suffice to indicate briefly that my stay at the MTPA was a living hell. I could not do my job. When I arrived there… corruption was rife… the debt, I was told when I arrived there, M’Lord, that it was R110-million, and it was there in the documentation, it was shown to me, that they were owing R110-million.”
Once again, it appeared, Modipane was providing evidence that went above and beyond what was required of him.
“Without going into detail,” he added, “I must just indicate that coming from a Treasury background, I understand the framework very well, and I understand how corruption comes about. I then started coming up with the process to test whether the debt was genuine, because in government they create what we call ‘fictitious creditors’ in order to steal from government.”
Modipane told the court that he had appointed a law firm and auditors to look into the “fictitious debt” – and that what was revealed was that the MPTA at the time owed no more than R18-million, “to Telkom, to Vodacom, and to companies which were feeding animals and so on.”
He testified: “So the whole [R92-million], it was a fictitious debt in order to steal the money, and they have stolen a lot of money at the MTPA.”
Case closure & Stalingrad rulings
After the fifth session of the trial ended, once all the transcripts were added to the court
record, Daily Maverick sent a list of questions to Nobunga, who had left the MTPA at the end of his five-year term (in 2022) and was now serving as the chairperson of the Railway Safety Regulator. What we wanted to know was whether Nobunga had reason to challenge the testimony of Modipane, specifically regarding the contents of the phone call.
But Nobunga declined to answer our questions, which meant that, for the moment, the facts were uncontested.
In their cross-examination of Modipane, which began on Friday, 9 June 2023, neither advocate Dawie Joubert SC – acting for the MTPA – nor advocate Mike Hellens SC – acting for Mabuza in his personal capacity – addressed the opening part of the witness’s testimony.
In other words, it was not disputed that Modipane received a call from Nobunga and another person “who is close” to Mabuza, and that this was effectively an attempt to “interfere with the evidence”.
Neither was it disputed, as per Modipane’s testimony, that “during Mabuza’s tenure from 2009, many people in the ANC… were assassinated” and that this was a very valid reason for the witness to fear for his safety.
Rather, (Dawie) Joubert and Hellens attempted to attack Modipane’s credibility.
To this end, at around 10.30 am, they introduced a report to the court record that had not yet been “discovered”. The effect of the introduction of this report at the final hour was that Judge Sardiwalla had to stand the court down until Monday, 12 June, so that Modipane and the plaintiffs could familiarise themselves with its contents.
In essence, the implicit allegation contained in the report was that Modipane, in December 2013, had updated his superiors in the provincial government on the status of the litigation between Daniel and the MTPA. If so, this would have nullified the witness’s testimony that he had “never dealt with the case”.
Modipane, for his part, testified that he did not personally write the report, although he did concede that it would not have been forwarded to the MTPA’s stakeholder authority had it not contained his signature. It was simply a matter, he stated, of “moving” the document up the chain.
“That history that is being mentioned there,” he testified, “I was not part of it… I agreed [to sign] because I had no reason not to believe those people, what they were writing, but that does not mean I agree with it entirely.”
Interjecting for the plaintiffs, (Jacques) Joubert pointed out to the court the identity of the report’s actual author – and the defendants, in return, conceded that they would consider calling him as a witness.
The remainder of the cross-examination, which lasted less than an hour, consisted of further attempts to impugn Modipane’s credibility – including an effort to get the witness to admit that he had been suspended from the MTPA for an incident that involved the theft of rhino horn.
“No,” Modipane testified, “the chairperson [of the MTPA] tried to suspend me, and then it hit back on her and as a result she was removed.”
Finally, just before the adjournment for lunch, when the defendants had finished their cross-examination, (Jacques) Joubert delivered the line that had been 13 years in the making.
“After the interference with [Modipane’s] evidence,” Daniel’s advocate informed the court, “we have decided we have got one more witness we want to call and he will be ready to testify at 14h00, Mr Andre Pienaar. So, M’Lord, then we will be closing our case.”
It was a seminal moment, rendered all the more profound by the fact that the defence’s alleged Stalingrad tactics – which Daily Maverick first addressed in August 2021 – had clearly not succeeded. From the initial lodging of the case in July 2010, Daniel and his legal team had driven case number 34502/2010 to the point where thousands of pages of prima facie and substantive evidence had now been tested in the Pretoria High Court.
It was perhaps appropriate, then, that Pienaar was the plaintiffs’ final witness. As readers of Daily Maverick may recall, it was this man – a Hoedspruit-based game dealer and wildlife capture expert – who had deposed an affidavit in February 2023 that implicated (Dawie) Joubert SC in an alleged attempt to “frame” Daniel. The affidavit, we reported, was backed up by WhatsApp messages that appeared to corroborate Pienaar’s version of events.
These same WhatsApp messages were the central feature of Pienaar’s evidence-in-chief, which was that, in return for providing testimony that he had illegally delivered crocodiles and hippos to Daniel’s nature reserve, a truck that had been confiscated by the provincial authorities would be returned to him.
In the cross-examination, conducted by Hellens, the defendants once again attempted to impugn the credibility of the witness, arguing that it was not the intention to frame Daniel, but simply to establish the “facts”.
What Hellens declined to address, however, was the substance of the WhatsApp messages themselves. By any interpretation of these texts, it was clear that the defendants had planned to use an unrelated criminal matter – regarding which no charges against Pienaar had formally been laid – to compel testimony in a civil trial.
And there was an even deeper irony here, which had everything to do with the Legal Practice Council (LPC), South Africa’s oversight body for dealing with malpractice by members of the legal fraternity. At the beginning of the fifth session, in May 2023, Hellens and (Dawie) Joubert had taken up almost a week of the court’s time by arguing that (Jacques) Joubert was not registered with the LPC – and that the entire trial should therefore be declared a nullity.
On 8 May, referring to the evidence of Marli Meyer, an official of the LPC who had been called to the stand by the defendants, Judge Sardiwalla handed down his judgment on the matter, ruling that (Jacques) Joubert was indeed registered and that there were “no prohibitions to continue in his practice”. The application, accordingly, was dismissed with costs.
While this may have been yet another in a long series of rulings and court orders against the defendants, it appeared that they did not take it to heart – according to the Stalingrad playbook, the longer they could stretch the trial out (with the South African taxpayer forking out for their fees), the more likely it would be that Daniel would run out of cash and steam.
Which, again, was why it was so remarkable that the plaintiffs announced the closure of their case on 12 June 2023. And just two days later, on Wednesday, 14 June, Judge Sardiwalla announced that the sixth session of the trial would commence on 6 November for two weeks, with a further two weeks set down for December.
Would the defendants manage to get through their own witness list in 20 court days?
The judge, for his part, said that he wanted the trial closed by the end of the year. Daniel, although he was showing no signs of flagging, would more than likely have agreed. DM
From left: Fred Daniel. (Photo: Supplied) | Former Mpumalanga premier and former SA deputy president David Mabuza. (Photo: Gallo Images / Darren Stewart)
By Kevin Bloom | 21 Jun 2023
The last week of the fifth session of case number 34502/2010, the long-running civil trial that has pitted conservationist Fred Daniel against former Deputy President David Mabuza, was marked by testimony that included allegations of political interference, fears of assassination and details of endemic corruption at the Mpumalanga Tourism and Parks Agency. Oh yes, and another witness gave testimony on an alleged framing attempt. So what does the sixth session hold?
_______________________________________________________________________________________________________________________
‘I think I had to discuss this matter with my advocate, M’Lord,” Bushang Jacques Modipane testified, “because in Mpumalanga during Mabuza’s tenure from 2009, many people in the ANC… were assassinated, and I have reason to be pessimistic about my future – I may be targeted.”
It was 11.10am on 8 June 2023, and the Pretoria High Court had just resumed after an hour’s adjournment. Having run for more than 150 court days and now nearing the end of its fifth session, the matter of case number 34502/2010 was no stranger to such procedural delays – in fact, at the close of the fourth session in September 2022, Judge Cassim Sardiwalla had registered his “disgust” at the defence’s stalling tactics – but this adjournment was different.
The previous night at around six, it turned out, Modipane had answered a call from the man who succeeded him as CEO of the Mpumalanga Tourism and Parks Agency (MTPA), Boy Johannes Nobunga. According to Modipane, Nobunga had attempted to persuade him not to take the stand. Advocate Jacques Joubert, acting for the plaintiffs, had interpreted this as an attempt at “interference with the evidence” and had therefore requested the adjournment to discuss the issue with his witness.
“Mr BJ Nobunga was coming from the ANC,” Modipane explained at around 11.05am, soon after the hearing resumed. “I worked with him in the ANC… and we were together at a later stage.”
After adding that he was surprised by the call, because Nobunga had effectively cut off all contact with him from around 2016, Modipane got to his point – and if there was a sharp edge to his point, it could have been summarised in the identity of the man who was suing the Mpumalanga government for R1-billion, the conservationist and whistle-blower Fred Daniel.
“[Nobunga] then said that, ‘You are going to give evidence in support of Mr Fred Daniel’,” Modipane testified. “And I said, ‘Yes I have been subpoenaed.’ He said, ‘You must be very careful, you cannot work with Fred Daniel, he is not a reliable guy…’ I said, ‘No, no, no, you are making a terrible mistake, I am not going to work with Mr Fred Daniel, I am going to give evidence in court about anything they want to ask me, and if I know something I will tell them what I know.’ ”
By Daily Maverick’s reckoning, given that we had dedicated more than a dozen features to the case, the testimony was already remarkable – never before in case number 34502/2010, which by this stage (including the aborted case management sessions) had run for almost half as long as the Zondo Commission, had a witness been so candid about a current attempt to defeat the ends of justice.
But Modipane, it transpired, was only warming up.
“[Nobunga] then started saying to me that we must not give evidence against the leaders of the ANC,” he continued at 11.07am, “because we are jeopardising the ANC. I said, ‘No, no, if I have to give evidence against the criminal behaviour, I do not care whether it is the leaders of the ANC or not, I am going to give that evidence, and for your information, I do not hold a brief for Mr Fred Daniel, and also I do not hold a brief for Mr Mabuza.’ ”
So there it was: Modipane’s first reference to David Dabede Mabuza – the premier of Mpumalanga from 2009 until 2018; and the deputy president of South Africa from 2018 until March 2023 – who, although he did not appear as either a witness or a defendant in case number 34502/20210, was nonetheless holding a senior counsel on retainer.
“To tell the honest fact,” Modipane offered, “I am very angry with Mabuza because he placed my family into a crisis for nine years now, almost 10 years I am not earning a living because of Mabuza.”
As Modipane had already informed the court, his CV included positions as a member of the first executive council in charge of Mpumalanga’s public finances, a stint as the MEC for safety and security and another stint as the MEC for finance, as well as six years as CEO of the Provincial House of Traditional Leaders before taking over at the MTPA in September 2012.
By referring to the fact that he had not been able to find a position in the public sector since 2014, when his contract with the MTPA was “terminated”, Modipane was effectively stating under oath that the former deputy president had been waging a personal vendetta against him.
More than that, as would be clear from his “assassination” remark at 11.10am, he was also stating under oath that he feared for his life.
Aside from the call the previous evening from Nobunga, Modipane testified that he had received another strange call before six that same morning from a person “who is close” to Mabuza. The witness declined to give the name of this man, but stated that he wanted to know if Modipane was at home and whether he could come over for a “visit”.
Requisitioned documents & fictitious debts
So what was it that former Deputy President Mabuza, by the authority of the court transcripts, did not want Modipane to place on the record?
As an opener to the evidence proper, at around 11.15am, Joubert asked Modipane whether he was aware that his predecessor at the MTPA, Charles Ndabeni, had attempted to “settle” the civil claim that Daniel had brought against the Mpumalanga government back in July 2010.
The significance of this question was clear – as Ndabeni himself had testified in an earlier session of the trial, and as Daily Maverick reported in the first part of our “Dead Matter” series, an internal investigation was concluded in 2011 that confirmed an unlawful and fraudulent campaign against Daniel by senior MTPA staff members with alleged links to Mabuza. Ndabeni, convinced of the truth of these findings, had attempted to compensate Daniel for his damages and bring the perpetrators to book, but instead he had been “compelled” to resign as chief executive of the MTPA in August 2011, well before the end of his five-year contract.
Although Modipane had been denied the benefit of a “handover report” from Ndabeni, he told the court, the MTPA’s executive management had fully briefed him about the attempt to settle with Daniel.
Next, after referring to a proposed “cooperation and development agreement” between Daniel’s former private nature reserve, Nkomazi Wilderness, and the MTPA, Joubert drew the court’s attention to the so-called “Great Nkomazi River Concept Plan” – or, technically, exhibit D-383 – and asked for Modipane’s comment.
“M’Lord,” Modipane testified, “this document… is an integrated concept document, and it falls within the vision of the government of South Africa. It is a document which emphasises that there was going to be a partnership between government and the private sector.”
The witness then went on to state that the plan included the creation of a transfrontier park that would link Nkomazi Wilderness with local provincial reserves and protected land in Swaziland, and that – “if it was implemented” – it would have been a “game-changer” for employment creation, tourism development and nature conservation in Mpumalanga.
“It was Mr Daniel’s evidence,” Joubert put it to Modipane, “that the idea was, if a cooperation and development agreement had been entered into, that this project, or this concept plan, would have been implemented. Do you confirm that?”
The witness responded: “I confirm it, and just one sentence on that. Had this document been supported by government, it would have changed the profile of tourism in the province and also the profile of nature conservation, because it was going to help create jobs. We actually used this document to invite investors to participate.”
Joubert: “And in your experience, what impact would that have also had on the damages claim?”
Modipane: “I think, had we managed to agree, it would have settled those damages. I am very optimistic it would have done that.”
Joubert did not ask Modipane for his opinion on why the agreement was never signed, but he did remind the court that Daniel had already provided evidence that the concept plan was partly an attempt to mitigate the damages.
Was this, then, the evidence that Mabuza (allegedly) did not want the Pretoria High Court to hear?
Perhaps, but there was something else.
About halfway through his testimony, Modipane stated that his own attempt at settling the damages claim had been stifled from early on in his tenure. This was due to the fact, he testified, that he had been informed by his executive management “that all the documents pertaining to that matter [were] no longer with the MTPA [but had] been removed to the premier’s office”.
The testimony was in line with what Daily Maverick reported in August 2022, when – in the context of a series of criminal case dockets that had “gone missing” – we cited page 198 of the MTPA’s 2015/2016 annual report, which confirmed that Mabuza’s former office had taken over the case, although “liability for legal fees” had remained with the agency.
By Modipane’s evidence, therefore, the documents had been in Mabuza’s possession for at least two years before the MTPA admitted as much. And, while this particular detail was not explicitly placed on the court record, what was explicit was Modipane’s memory of his time at the MTPA.
“Did you have any say afterwards in any attempt to try and settle this case?” asked Joubert.
“No,” Modipane responded, “I did not have any say about this case, and I never dealt with this case, suffice to indicate briefly that my stay at the MTPA was a living hell. I could not do my job. When I arrived there… corruption was rife… the debt, I was told when I arrived there, M’Lord, that it was R110-million, and it was there in the documentation, it was shown to me, that they were owing R110-million.”
Once again, it appeared, Modipane was providing evidence that went above and beyond what was required of him.
“Without going into detail,” he added, “I must just indicate that coming from a Treasury background, I understand the framework very well, and I understand how corruption comes about. I then started coming up with the process to test whether the debt was genuine, because in government they create what we call ‘fictitious creditors’ in order to steal from government.”
Modipane told the court that he had appointed a law firm and auditors to look into the “fictitious debt” – and that what was revealed was that the MPTA at the time owed no more than R18-million, “to Telkom, to Vodacom, and to companies which were feeding animals and so on.”
He testified: “So the whole [R92-million], it was a fictitious debt in order to steal the money, and they have stolen a lot of money at the MTPA.”
Case closure & Stalingrad rulings
After the fifth session of the trial ended, once all the transcripts were added to the court
record, Daily Maverick sent a list of questions to Nobunga, who had left the MTPA at the end of his five-year term (in 2022) and was now serving as the chairperson of the Railway Safety Regulator. What we wanted to know was whether Nobunga had reason to challenge the testimony of Modipane, specifically regarding the contents of the phone call.
But Nobunga declined to answer our questions, which meant that, for the moment, the facts were uncontested.
In their cross-examination of Modipane, which began on Friday, 9 June 2023, neither advocate Dawie Joubert SC – acting for the MTPA – nor advocate Mike Hellens SC – acting for Mabuza in his personal capacity – addressed the opening part of the witness’s testimony.
In other words, it was not disputed that Modipane received a call from Nobunga and another person “who is close” to Mabuza, and that this was effectively an attempt to “interfere with the evidence”.
Neither was it disputed, as per Modipane’s testimony, that “during Mabuza’s tenure from 2009, many people in the ANC… were assassinated” and that this was a very valid reason for the witness to fear for his safety.
Rather, (Dawie) Joubert and Hellens attempted to attack Modipane’s credibility.
To this end, at around 10.30 am, they introduced a report to the court record that had not yet been “discovered”. The effect of the introduction of this report at the final hour was that Judge Sardiwalla had to stand the court down until Monday, 12 June, so that Modipane and the plaintiffs could familiarise themselves with its contents.
In essence, the implicit allegation contained in the report was that Modipane, in December 2013, had updated his superiors in the provincial government on the status of the litigation between Daniel and the MTPA. If so, this would have nullified the witness’s testimony that he had “never dealt with the case”.
Modipane, for his part, testified that he did not personally write the report, although he did concede that it would not have been forwarded to the MTPA’s stakeholder authority had it not contained his signature. It was simply a matter, he stated, of “moving” the document up the chain.
“That history that is being mentioned there,” he testified, “I was not part of it… I agreed [to sign] because I had no reason not to believe those people, what they were writing, but that does not mean I agree with it entirely.”
Interjecting for the plaintiffs, (Jacques) Joubert pointed out to the court the identity of the report’s actual author – and the defendants, in return, conceded that they would consider calling him as a witness.
The remainder of the cross-examination, which lasted less than an hour, consisted of further attempts to impugn Modipane’s credibility – including an effort to get the witness to admit that he had been suspended from the MTPA for an incident that involved the theft of rhino horn.
“No,” Modipane testified, “the chairperson [of the MTPA] tried to suspend me, and then it hit back on her and as a result she was removed.”
Finally, just before the adjournment for lunch, when the defendants had finished their cross-examination, (Jacques) Joubert delivered the line that had been 13 years in the making.
“After the interference with [Modipane’s] evidence,” Daniel’s advocate informed the court, “we have decided we have got one more witness we want to call and he will be ready to testify at 14h00, Mr Andre Pienaar. So, M’Lord, then we will be closing our case.”
It was a seminal moment, rendered all the more profound by the fact that the defence’s alleged Stalingrad tactics – which Daily Maverick first addressed in August 2021 – had clearly not succeeded. From the initial lodging of the case in July 2010, Daniel and his legal team had driven case number 34502/2010 to the point where thousands of pages of prima facie and substantive evidence had now been tested in the Pretoria High Court.
It was perhaps appropriate, then, that Pienaar was the plaintiffs’ final witness. As readers of Daily Maverick may recall, it was this man – a Hoedspruit-based game dealer and wildlife capture expert – who had deposed an affidavit in February 2023 that implicated (Dawie) Joubert SC in an alleged attempt to “frame” Daniel. The affidavit, we reported, was backed up by WhatsApp messages that appeared to corroborate Pienaar’s version of events.
These same WhatsApp messages were the central feature of Pienaar’s evidence-in-chief, which was that, in return for providing testimony that he had illegally delivered crocodiles and hippos to Daniel’s nature reserve, a truck that had been confiscated by the provincial authorities would be returned to him.
In the cross-examination, conducted by Hellens, the defendants once again attempted to impugn the credibility of the witness, arguing that it was not the intention to frame Daniel, but simply to establish the “facts”.
What Hellens declined to address, however, was the substance of the WhatsApp messages themselves. By any interpretation of these texts, it was clear that the defendants had planned to use an unrelated criminal matter – regarding which no charges against Pienaar had formally been laid – to compel testimony in a civil trial.
And there was an even deeper irony here, which had everything to do with the Legal Practice Council (LPC), South Africa’s oversight body for dealing with malpractice by members of the legal fraternity. At the beginning of the fifth session, in May 2023, Hellens and (Dawie) Joubert had taken up almost a week of the court’s time by arguing that (Jacques) Joubert was not registered with the LPC – and that the entire trial should therefore be declared a nullity.
On 8 May, referring to the evidence of Marli Meyer, an official of the LPC who had been called to the stand by the defendants, Judge Sardiwalla handed down his judgment on the matter, ruling that (Jacques) Joubert was indeed registered and that there were “no prohibitions to continue in his practice”. The application, accordingly, was dismissed with costs.
While this may have been yet another in a long series of rulings and court orders against the defendants, it appeared that they did not take it to heart – according to the Stalingrad playbook, the longer they could stretch the trial out (with the South African taxpayer forking out for their fees), the more likely it would be that Daniel would run out of cash and steam.
Which, again, was why it was so remarkable that the plaintiffs announced the closure of their case on 12 June 2023. And just two days later, on Wednesday, 14 June, Judge Sardiwalla announced that the sixth session of the trial would commence on 6 November for two weeks, with a further two weeks set down for December.
Would the defendants manage to get through their own witness list in 20 court days?
The judge, for his part, said that he wanted the trial closed by the end of the year. Daniel, although he was showing no signs of flagging, would more than likely have agreed. DM
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Re: Dead Matter (Part One, Two & Three): How political corruption decimated Mpumalanga’s biodiversity
JUSTICE DELAYED, JUSTICE DENIED
In new Stalingrad defence low, Ramaphosa’s discharge of DD Mabuza trial judge delays truth for many more years
Illustrative image (from left): Former deputy president David Mabuza. (Photo: Gallo Images / Brenton Geach) | President of South Africa Cyril Ramaphosa. (Photo: Vitalii Nosach / Global Images Ukraine via Getty Images) | Conservationist Fred Daniel. (Photo: Supplied) | (Photo: Alet Pretorius) | (Photo: Shiraaz Mohamed)
By Kevin Bloom | 04 Dec 2023
On 24 July 2023, for reasons that remain unknown to Daily Maverick, President Cyril Ramaphosa signed an order that discharged Judge Cassim Sardiwalla from his duties at the Gauteng Division of the High Court in Pretoria. As the trial judge in the Fred Daniel matter, Sardiwalla was presiding over evidence that implicated David Mabuza, South Africa’s former deputy president, in a large Mpumalanga criminal enterprise. Was there a conspiracy to quash the case?
_________________________________________________________________________________________________________________
Seal of the Republic
‘This de novo trial must also be held in open court.”
If ever there was a sentence that revealed the intentions of the state defendants in case number 34502/2010 of the Gauteng Division of the High Court in Pretoria, the infamous R1-billion civil claim that had been lodged by conservationist Fred Daniel against the Mpumalanga provincial government all the way back in July 2010, these few words appeared to qualify on every count.
For starters, there was the Latin phrase “de novo,” which translates as “from the beginning” or “anew”.
In the letter that state attorney Nelson Govender sent to Daniel’s lawyers on 9 November 2023, three days after the sixth session of the marathon trial was due to kick off, the phrase was repeated more than half-a-dozen times.
In other words, after more than 13 years of litigation, comprising millions of pages of correspondence, countless aborted case management sessions and upwards of 180 court days, the government defendants were now arguing that the whole thing needed to start again from scratch.
“It is trite law that when proceedings are commenced de novo,” Govender wrote, “it is neither permissible nor desirable for the new presiding judge to be allowed to see or read the evidence given on a previous occasion.”
Why was Govender so sure that there would be a new presiding judge? The precise answer to this question was something that Daily Maverick had been chasing since early September 2023, when the plaintiffs had been blindsided by the news — at a case management meeting overseen by Judge President Dunstan Mlambo of the Gauteng Division of the High Court — that Judge Cassim Sardiwalla was suffering from an alleged “incapacity”.
From there, in the weeks leading up to 6 November 2023 — when, to reiterate, the sixth session of the trial was scheduled to begin — the matter of Sardiwalla’s health had become progressively more opaque. There had been more than a few details that simply didn’t add up, but from our initial reporting there were three that stood out.
First, it turned out that President Cyril Ramaphosa had discharged Judge Sardiwalla on 24 July 2023, in a signed order that referred to him “becoming permanently incapable of performing his official duties.” Yet more than five weeks would pass before the plaintiffs, at the case management meeting of 4 September, would learn of the judge’s so-called “medical boarding”. Further, the plaintiffs would receive a copy of the President’s certified discharge order only at the end of October 2023.
Second, it appeared that the government defendants may have known about Sardiwalla’s discharge before the plaintiffs. In correspondence exchanged between the parties on 29 September, Daniel’s lawyers asserted that it was “apparent from the prepared submissions presented by the defendants’ counsel” at the meeting of 4 September that “they were indeed prepared to deal with specific issues.” One of these issues, it was noted, was “the unbridled attack on the trial judge, inter alia, by casting doubt on his cognitive abilities in an attempt to vitiate the proceedings.”
Third, despite four requests to the office of Judge President Mlambo for a transcript of the meeting of 4 September, at the time of this writing, to Daily Maverick‘s knowledge, the plaintiffs had still not received the document.
On their own, these three points would have been enough to raise suspicions. The government defendants’ consistent use of the Stalingrad defence had been a subject we’d covered through the duration of the trial — it had justified two standalone pieces, in August 2021 and September 2022, and in May 2023 it had culminated in a cost order against the defendants for attempting to have Daniel’s advocate removed and the trial declared a nullity.
By our assessment, in terms of the legal truism that “justice delayed is denied,” the confusion around Sardiwalla’s discharge was, at the very least, more of the same. But a few months into our reporting, we would discover something that took it to a whole new level; a detail that had been staring us in the face.
A simple search of the Southern African Legal Information Institute database revealed that Judge Sardiwalla had handed down at least five judgments after 1 August 2023, when his discharge came into effect. These judgments, on pending matters, included complicated cases to do with the Legal Practice Council, a financial services company and an application for an interdict against the EFF.
And so, by mid-November 2023, shortly before we sent our requests for comment to the President’s office and the judiciary, one would be forgiven for contemplating the worst-case scenario:
Was there a conspiracy to quash the case number 34502/2010?
To be clear, despite months of anxiety and hand-wringing, Daniel and his advocate, Jacques Joubert, would not arrive at any definitive conclusion about the possibility. To them, in their engagements after 4 September with Judge President Mlambo and Deputy Judge President Aubrey Ledwaba, it appeared “plausible” that the integrity of the judiciary remained intact.
By purely journalistic standards, however, there was much more room for doubt. It all had to do with the insistence of the government defendants that the trial should begin de novo, and that the new proceedings should take place in open court.
Not the World Cup
On 21 June 2023, Daily Maverick published a piece under the title, “Fearful witness gives explosive testimony against former deputy president Mabuza”. In it, we pointed out that the last week of the fifth session of case number 34502/2010 had been marked by testimony that included allegations of political interference, fears of assassination and details of endemic corruption at the Mpumalanga Tourism and Parks Agency (MTPA).
The witness for the plaintiffs was Jacques Modipane, a former member of the ANC who had served as the CEO of the MTPA between 2012 and 2014. On the morning of 8 June 2023, we reported, Modipane had opened his testimony with the assertion that the man who’d succeeded him as CEO, Boy Johannes Nobunga, had called him up the previous evening with a veiled threat.
“You must be very careful, you cannot work with Fred Daniel, he is not a reliable guy’,” Nobunga had allegedly told Modipane. “He then started saying to me that we must not give evidence against the leaders of the ANC, because we are jeopardising the ANC.”
That same morning, Modipane continued, he had received another call, from a person who was known “to be close” to former deputy president David Mabuza — this deliberately unnamed person, the witness explained, had allegedly asked to come by “for a visit”.
“I am very angry with Mabuza because he placed my family into a crisis for nine years now,” Modipane informed the court, “almost 10 years I am not earning a living because of Mabuza.”
The clear allegation here was that Mabuza had been waging a personal vendetta against him, entirely because of his refusal to comply with — and benefit from — the various rackets that had taken control of the agency. But more than that, Modipane testified, was the apparent fact that “during Mabuza’s tenure [as premier of Mpumalanga] from 2009, many people in the ANC … were assassinated.”
Importantly, neither advocate Dawie Joubert SC, acting for the Mpumalanga government, nor advocate Mike Hellens SC, acting for Mabuza in his personal capacity, had cross-examined Modipane on the opening part of his testimony. Which meant, of course, that it remained an uncontested part of the court record.
Equally obvious, if the government defendants got their way and the trial began de novo, Modipane’s testimony would be expunged from the court record.
The second part of Modipane’s evidence, where he outlined the fictitious debts that the MTPA had racked up in the years before his appointment, would go the same expunged way. As would the witness’s testimony that Mabuza had stifled all his attempts at settling the damages claim with Daniel.
Would Modipane take the risk of placing it all on record again, word for word and from the start, in an unprotected open court?
By any reckoning, it would be a remarkably brave thing to do. And here, it appeared, was where the leverage in the defendants’ strategy lay.
The virtual trial, which had kicked off on Microsoft Teams in the winter of 2021 due to Covid-19, had accorded a great deal of safety and assurance to Daniel’s list of witnesses. Not only that, but it had saved Daniel the combined expense — which he was footing from his own pocket, while Hellens, (Dawie) Joubert and Govender were getting funded and paid by the state — plus for all travel, meals and accommodation.
And yet still, as Daniel told Daily Maverick in October 2023, the trial had almost bankrupted him.
“There is no way I can afford to run it all again in open court,” he said.
For Daniel, since he had closed his case with the testimony of Modipane, and given that the defendants’ latest counter-move had come in the wake of the Rugby World Cup, the closest analogy — if the judiciary did indeed award a de novo open court trial — was to a Springbok who was about to score the winning try in the closing minute of the final.
“There’s nobody ahead of him,” Daniel offered, “the try-line is wide open and he’s two metres from the mark, with 30 seconds left on the clock. The ref blows the whistle, takes the ball away from him and kicks it into the stands.”
Evidence, shmevidence
But that’s what the Springboks would’ve lost. The bigger question, for Daily Maverick at least, was what did the country stand to lose?
As anyone familiar with this historic case is well aware, the prodigious evidence that the plaintiffs’ witnesses have submitted under cross-examination to the Pretoria High Court has dealt, in the main, with the so-called “land claims scam” — a many-tentacled organised crime operation, allegedly overseen by former deputy president Mabuza, that cynically abused the Restitution of Land Rights Act to enrich an unlikely cabal of white Afrikaaner middlemen and ANC party loyalists.
The overall cost of the scam to the Mpumalanga economy, according to a 2015 report compiled by retired judge Willem Heath, was R35-billion. But that measurement, as devastating as it was to the province’s unemployment figures and tourism heritage, did not take into account the much more subtle damage to the South African Constitution. Because, if apartheid had been about anything, it had been about the removal of communities, clans and entire tribes from their ancestral lands — and here, section 25 of the Constitution, just like its legislative offspring the Restitution of Land Rights Act, had once been counted with the most enlightened land reform laws in the world.
Daniel’s consistent allegation, from when he had first blown the whistle on the land claims scam in the spring of 2004, was that the ANC-controlled South African government had been stealing the land from the very people to whom it was supposed to be given back. As he had come to learn over the years, the mechanisms for this gigantic fraud were never obvious or direct; rather, with their hands on the provincial land reform funds that flowed in yearly from the national budget, Mabuza and his partners could get creative.
To refer to just a handful of the articles that Daily Maverick has published on the matter in the past three years, the first item of ANC-linked evidence was placed on the court record in August 2021, when former SAPS inspector Kobus Vermeulen provided testimony of a hostage situation at the Badplaas police station that had occurred a few days before a violent protest at Daniel’s nearby nature reserve. Both of these events, according to the tenor of Vermeulen’s evidence, had been orchestrated by Mabuza himself, who at the time — the winter of 2008 — had been the Mpumalanga MEC for agriculture and land affairs.
“He basically applauded them and told them not to worry,” Vermeulen testified, with reference to Mabuza’s surprise arrival at the protest, “[saying] that the land will be given back to its lawful claimants.”
In the same article, we cited the testimony of forensic investigator Paul O’Sullivan, which provided a detailed history of the spate of fake land claims that had been registered in the Badplaas region of Mpumalanga during Mabuza’s tenure, as well as the methods by which land prices had been inflated and the “profits” split between government employees and local white middlemen.
Included in O’Sullivan’s testimony was documentary evidence of payments to a certain Pieter Visagie, the Badplaas speculator who had been outed as the “architect” of the land claims scam when the story first broke in City Press in September 2004. By any estimation, the hottest piece of evidence was a letter of motivation to the provincial land claims commissioner for a payment of R3.4-million to Visagie — over and above the R18-million he had already been paid — drafted and signed by Mabuza in January 2009.
Still, as Judge Sardiwalla would hear, the colluding partners over the years had not been limited to the same Afrikaaner middlemen. In February 2022, during the third session of the trial, human rights advocate and land reform specialist Richard Spoor would take the stand, to confirm the general pattern of racketeering, further substantiate the campaign of harassment against Daniel, and expose the alleged involvement of Mabuza’s wife, too.
“To the best of my recall substantial sale commissions were paid to Premier DD Mabuza’s wife,” paragraph 52 of Spoor’s witness statement noted, “who was a Pam Golding estate agent.”
Spoor was not asked to provide oral testimony on this aspect of his statement, which prompted Daily Maverick to undertake its own deep dive into the documentation. The resulting article, which followed the trail all the way from the infancy of the scam, in 2004, to its maturity, in 2015, would draw the attention of Major-General Kubandran Moodley of the Hawks, who in April 2022 would appoint a team of senior officers to investigate.
What Moodley and his team would discover, however, was that a number of criminal investigations had been attempted before.
In our article “Revealed: David Mabuza, Fred Daniel and the missing crime dockets,” published in August 2022, we provided evidence of three absent or empty case files, which had each been focused on smaller slices of the larger criminal enterprise pie. The effect of the missing dockets, since they spoke of political interference at the highest levels, was to chill the Hawks team into submission.
But then, on 5 December 2022, inspired largely by the missing dockets, the Organisation Undoing Tax Abuse (Outa) filed a 41-page criminal complaint under the Prevention of Organised Crime Act, with Mabuza’s name atop the list of 15 suspects. For the first time, the entire litany of allegations was included in a single affidavit, and the relationship between the land claims scam and the corruption at the MTPA was made abundantly clear.
At Daily Maverick, given that the affidavit contained embedded online links to all the substantive and prima facie evidence, we assumed that DD “The Cat” Mabuza may have run out of lives.
We were wrong.
Almost a year to the day later, after too many follow-ups to count, the Investigating Directorate of the National Prosecuting Authority had still not provided us with an update on the status of the complaint. Which meant that there was only one place left to turn.
Last-Chance Saloon
Our questions to Judge President Mlambo and Deputy Judge President Ledwaba, sent on the afternoon of 22 November 2023, were almost identical to the questions we sent to the office of President Ramaphosa, at exactly the same time.
To open the questions, we cited Ramaphosa’s order of 24 July, where the only explanation provided for Judge Sardiwalla’s discharge was that he had become “permanently incapable” of performing his duties.
“Given that the plaintiffs closed their case at the end of the fifth session of the trial in June 2023,” we asked, “do you assert that the timing of the discharge was a coincidence? If so, could you perhaps provide our readers with a more comprehensive account of why Judge Sardiwalla was discharged?”
The question did not elicit an answer from either of the parties.
Neither did the questions that followed. At the time of this writing, we still do not know why it took more than five weeks for the plaintiffs to be informed of Sardiwalla’s alleged “incapacity,” and we have not been provided any reason as to why a copy of the official discharge order was only furnished at the end of October, a week before the sixth session was due to begin. Similarly, we don’t know why, despite four written requests to Judge President Mlambo, the plaintiffs do not have a transcript of the meeting of 4 September.
But for us, again, it was the refusal to answer the final question that raised the likelihood of a conspiracy.
“Since his discharge on 24 July 2023,” we wrote, “Judge Cassim Sardiwalla has handed down at least five judgments, including but not limited to:
As things stand, Daily Maverick has learnt, the matter has been referred to justice minister Ronald Lamola, who will apparently appoint a judge to replace Sardiwalla. There is no clarity, however, on whether the decision on a de novo trial will be up to the replacement judge, Judge President Mlambo or Lamola himself.
At stake, for the voting citizens of South Africa, is the democratic future of the country. If the order is made to start the trial from scratch, at least the position of the Ramaphosa cabinet will be clear: DD “The Cat” Mabuza has not run out of multiple lives just yet. DM
In new Stalingrad defence low, Ramaphosa’s discharge of DD Mabuza trial judge delays truth for many more years
Illustrative image (from left): Former deputy president David Mabuza. (Photo: Gallo Images / Brenton Geach) | President of South Africa Cyril Ramaphosa. (Photo: Vitalii Nosach / Global Images Ukraine via Getty Images) | Conservationist Fred Daniel. (Photo: Supplied) | (Photo: Alet Pretorius) | (Photo: Shiraaz Mohamed)
By Kevin Bloom | 04 Dec 2023
On 24 July 2023, for reasons that remain unknown to Daily Maverick, President Cyril Ramaphosa signed an order that discharged Judge Cassim Sardiwalla from his duties at the Gauteng Division of the High Court in Pretoria. As the trial judge in the Fred Daniel matter, Sardiwalla was presiding over evidence that implicated David Mabuza, South Africa’s former deputy president, in a large Mpumalanga criminal enterprise. Was there a conspiracy to quash the case?
_________________________________________________________________________________________________________________
Seal of the Republic
‘This de novo trial must also be held in open court.”
If ever there was a sentence that revealed the intentions of the state defendants in case number 34502/2010 of the Gauteng Division of the High Court in Pretoria, the infamous R1-billion civil claim that had been lodged by conservationist Fred Daniel against the Mpumalanga provincial government all the way back in July 2010, these few words appeared to qualify on every count.
For starters, there was the Latin phrase “de novo,” which translates as “from the beginning” or “anew”.
In the letter that state attorney Nelson Govender sent to Daniel’s lawyers on 9 November 2023, three days after the sixth session of the marathon trial was due to kick off, the phrase was repeated more than half-a-dozen times.
In other words, after more than 13 years of litigation, comprising millions of pages of correspondence, countless aborted case management sessions and upwards of 180 court days, the government defendants were now arguing that the whole thing needed to start again from scratch.
“It is trite law that when proceedings are commenced de novo,” Govender wrote, “it is neither permissible nor desirable for the new presiding judge to be allowed to see or read the evidence given on a previous occasion.”
Why was Govender so sure that there would be a new presiding judge? The precise answer to this question was something that Daily Maverick had been chasing since early September 2023, when the plaintiffs had been blindsided by the news — at a case management meeting overseen by Judge President Dunstan Mlambo of the Gauteng Division of the High Court — that Judge Cassim Sardiwalla was suffering from an alleged “incapacity”.
From there, in the weeks leading up to 6 November 2023 — when, to reiterate, the sixth session of the trial was scheduled to begin — the matter of Sardiwalla’s health had become progressively more opaque. There had been more than a few details that simply didn’t add up, but from our initial reporting there were three that stood out.
First, it turned out that President Cyril Ramaphosa had discharged Judge Sardiwalla on 24 July 2023, in a signed order that referred to him “becoming permanently incapable of performing his official duties.” Yet more than five weeks would pass before the plaintiffs, at the case management meeting of 4 September, would learn of the judge’s so-called “medical boarding”. Further, the plaintiffs would receive a copy of the President’s certified discharge order only at the end of October 2023.
Second, it appeared that the government defendants may have known about Sardiwalla’s discharge before the plaintiffs. In correspondence exchanged between the parties on 29 September, Daniel’s lawyers asserted that it was “apparent from the prepared submissions presented by the defendants’ counsel” at the meeting of 4 September that “they were indeed prepared to deal with specific issues.” One of these issues, it was noted, was “the unbridled attack on the trial judge, inter alia, by casting doubt on his cognitive abilities in an attempt to vitiate the proceedings.”
Third, despite four requests to the office of Judge President Mlambo for a transcript of the meeting of 4 September, at the time of this writing, to Daily Maverick‘s knowledge, the plaintiffs had still not received the document.
On their own, these three points would have been enough to raise suspicions. The government defendants’ consistent use of the Stalingrad defence had been a subject we’d covered through the duration of the trial — it had justified two standalone pieces, in August 2021 and September 2022, and in May 2023 it had culminated in a cost order against the defendants for attempting to have Daniel’s advocate removed and the trial declared a nullity.
By our assessment, in terms of the legal truism that “justice delayed is denied,” the confusion around Sardiwalla’s discharge was, at the very least, more of the same. But a few months into our reporting, we would discover something that took it to a whole new level; a detail that had been staring us in the face.
A simple search of the Southern African Legal Information Institute database revealed that Judge Sardiwalla had handed down at least five judgments after 1 August 2023, when his discharge came into effect. These judgments, on pending matters, included complicated cases to do with the Legal Practice Council, a financial services company and an application for an interdict against the EFF.
- Fedbond Nominees (Pty) Limited v Crypton Properties CC and Another, handed down on 7 August 2023;
- Keele v Legal Practice Council and Another, handed down on 22 August 2023;
- Gas Giants CC and Another v Economic Freedom Fighters and Others, handed down on 31 August 2023;
- Ngcebetsha and Another v Legal Practice Council of South Africa, handed down on 4 September 2023; and
- Matsi Law Chambers Inc v Lesiba Jeremiah Mailula, handed down on 7 September 2023.
And so, by mid-November 2023, shortly before we sent our requests for comment to the President’s office and the judiciary, one would be forgiven for contemplating the worst-case scenario:
Was there a conspiracy to quash the case number 34502/2010?
To be clear, despite months of anxiety and hand-wringing, Daniel and his advocate, Jacques Joubert, would not arrive at any definitive conclusion about the possibility. To them, in their engagements after 4 September with Judge President Mlambo and Deputy Judge President Aubrey Ledwaba, it appeared “plausible” that the integrity of the judiciary remained intact.
By purely journalistic standards, however, there was much more room for doubt. It all had to do with the insistence of the government defendants that the trial should begin de novo, and that the new proceedings should take place in open court.
Not the World Cup
On 21 June 2023, Daily Maverick published a piece under the title, “Fearful witness gives explosive testimony against former deputy president Mabuza”. In it, we pointed out that the last week of the fifth session of case number 34502/2010 had been marked by testimony that included allegations of political interference, fears of assassination and details of endemic corruption at the Mpumalanga Tourism and Parks Agency (MTPA).
The witness for the plaintiffs was Jacques Modipane, a former member of the ANC who had served as the CEO of the MTPA between 2012 and 2014. On the morning of 8 June 2023, we reported, Modipane had opened his testimony with the assertion that the man who’d succeeded him as CEO, Boy Johannes Nobunga, had called him up the previous evening with a veiled threat.
“You must be very careful, you cannot work with Fred Daniel, he is not a reliable guy’,” Nobunga had allegedly told Modipane. “He then started saying to me that we must not give evidence against the leaders of the ANC, because we are jeopardising the ANC.”
That same morning, Modipane continued, he had received another call, from a person who was known “to be close” to former deputy president David Mabuza — this deliberately unnamed person, the witness explained, had allegedly asked to come by “for a visit”.
“I am very angry with Mabuza because he placed my family into a crisis for nine years now,” Modipane informed the court, “almost 10 years I am not earning a living because of Mabuza.”
The clear allegation here was that Mabuza had been waging a personal vendetta against him, entirely because of his refusal to comply with — and benefit from — the various rackets that had taken control of the agency. But more than that, Modipane testified, was the apparent fact that “during Mabuza’s tenure [as premier of Mpumalanga] from 2009, many people in the ANC … were assassinated.”
Importantly, neither advocate Dawie Joubert SC, acting for the Mpumalanga government, nor advocate Mike Hellens SC, acting for Mabuza in his personal capacity, had cross-examined Modipane on the opening part of his testimony. Which meant, of course, that it remained an uncontested part of the court record.
Equally obvious, if the government defendants got their way and the trial began de novo, Modipane’s testimony would be expunged from the court record.
The second part of Modipane’s evidence, where he outlined the fictitious debts that the MTPA had racked up in the years before his appointment, would go the same expunged way. As would the witness’s testimony that Mabuza had stifled all his attempts at settling the damages claim with Daniel.
Would Modipane take the risk of placing it all on record again, word for word and from the start, in an unprotected open court?
By any reckoning, it would be a remarkably brave thing to do. And here, it appeared, was where the leverage in the defendants’ strategy lay.
The virtual trial, which had kicked off on Microsoft Teams in the winter of 2021 due to Covid-19, had accorded a great deal of safety and assurance to Daniel’s list of witnesses. Not only that, but it had saved Daniel the combined expense — which he was footing from his own pocket, while Hellens, (Dawie) Joubert and Govender were getting funded and paid by the state — plus for all travel, meals and accommodation.
And yet still, as Daniel told Daily Maverick in October 2023, the trial had almost bankrupted him.
“There is no way I can afford to run it all again in open court,” he said.
For Daniel, since he had closed his case with the testimony of Modipane, and given that the defendants’ latest counter-move had come in the wake of the Rugby World Cup, the closest analogy — if the judiciary did indeed award a de novo open court trial — was to a Springbok who was about to score the winning try in the closing minute of the final.
“There’s nobody ahead of him,” Daniel offered, “the try-line is wide open and he’s two metres from the mark, with 30 seconds left on the clock. The ref blows the whistle, takes the ball away from him and kicks it into the stands.”
Evidence, shmevidence
But that’s what the Springboks would’ve lost. The bigger question, for Daily Maverick at least, was what did the country stand to lose?
As anyone familiar with this historic case is well aware, the prodigious evidence that the plaintiffs’ witnesses have submitted under cross-examination to the Pretoria High Court has dealt, in the main, with the so-called “land claims scam” — a many-tentacled organised crime operation, allegedly overseen by former deputy president Mabuza, that cynically abused the Restitution of Land Rights Act to enrich an unlikely cabal of white Afrikaaner middlemen and ANC party loyalists.
The overall cost of the scam to the Mpumalanga economy, according to a 2015 report compiled by retired judge Willem Heath, was R35-billion. But that measurement, as devastating as it was to the province’s unemployment figures and tourism heritage, did not take into account the much more subtle damage to the South African Constitution. Because, if apartheid had been about anything, it had been about the removal of communities, clans and entire tribes from their ancestral lands — and here, section 25 of the Constitution, just like its legislative offspring the Restitution of Land Rights Act, had once been counted with the most enlightened land reform laws in the world.
Daniel’s consistent allegation, from when he had first blown the whistle on the land claims scam in the spring of 2004, was that the ANC-controlled South African government had been stealing the land from the very people to whom it was supposed to be given back. As he had come to learn over the years, the mechanisms for this gigantic fraud were never obvious or direct; rather, with their hands on the provincial land reform funds that flowed in yearly from the national budget, Mabuza and his partners could get creative.
To refer to just a handful of the articles that Daily Maverick has published on the matter in the past three years, the first item of ANC-linked evidence was placed on the court record in August 2021, when former SAPS inspector Kobus Vermeulen provided testimony of a hostage situation at the Badplaas police station that had occurred a few days before a violent protest at Daniel’s nearby nature reserve. Both of these events, according to the tenor of Vermeulen’s evidence, had been orchestrated by Mabuza himself, who at the time — the winter of 2008 — had been the Mpumalanga MEC for agriculture and land affairs.
“He basically applauded them and told them not to worry,” Vermeulen testified, with reference to Mabuza’s surprise arrival at the protest, “[saying] that the land will be given back to its lawful claimants.”
In the same article, we cited the testimony of forensic investigator Paul O’Sullivan, which provided a detailed history of the spate of fake land claims that had been registered in the Badplaas region of Mpumalanga during Mabuza’s tenure, as well as the methods by which land prices had been inflated and the “profits” split between government employees and local white middlemen.
Included in O’Sullivan’s testimony was documentary evidence of payments to a certain Pieter Visagie, the Badplaas speculator who had been outed as the “architect” of the land claims scam when the story first broke in City Press in September 2004. By any estimation, the hottest piece of evidence was a letter of motivation to the provincial land claims commissioner for a payment of R3.4-million to Visagie — over and above the R18-million he had already been paid — drafted and signed by Mabuza in January 2009.
Still, as Judge Sardiwalla would hear, the colluding partners over the years had not been limited to the same Afrikaaner middlemen. In February 2022, during the third session of the trial, human rights advocate and land reform specialist Richard Spoor would take the stand, to confirm the general pattern of racketeering, further substantiate the campaign of harassment against Daniel, and expose the alleged involvement of Mabuza’s wife, too.
“To the best of my recall substantial sale commissions were paid to Premier DD Mabuza’s wife,” paragraph 52 of Spoor’s witness statement noted, “who was a Pam Golding estate agent.”
Spoor was not asked to provide oral testimony on this aspect of his statement, which prompted Daily Maverick to undertake its own deep dive into the documentation. The resulting article, which followed the trail all the way from the infancy of the scam, in 2004, to its maturity, in 2015, would draw the attention of Major-General Kubandran Moodley of the Hawks, who in April 2022 would appoint a team of senior officers to investigate.
What Moodley and his team would discover, however, was that a number of criminal investigations had been attempted before.
In our article “Revealed: David Mabuza, Fred Daniel and the missing crime dockets,” published in August 2022, we provided evidence of three absent or empty case files, which had each been focused on smaller slices of the larger criminal enterprise pie. The effect of the missing dockets, since they spoke of political interference at the highest levels, was to chill the Hawks team into submission.
But then, on 5 December 2022, inspired largely by the missing dockets, the Organisation Undoing Tax Abuse (Outa) filed a 41-page criminal complaint under the Prevention of Organised Crime Act, with Mabuza’s name atop the list of 15 suspects. For the first time, the entire litany of allegations was included in a single affidavit, and the relationship between the land claims scam and the corruption at the MTPA was made abundantly clear.
At Daily Maverick, given that the affidavit contained embedded online links to all the substantive and prima facie evidence, we assumed that DD “The Cat” Mabuza may have run out of lives.
We were wrong.
Almost a year to the day later, after too many follow-ups to count, the Investigating Directorate of the National Prosecuting Authority had still not provided us with an update on the status of the complaint. Which meant that there was only one place left to turn.
Last-Chance Saloon
Our questions to Judge President Mlambo and Deputy Judge President Ledwaba, sent on the afternoon of 22 November 2023, were almost identical to the questions we sent to the office of President Ramaphosa, at exactly the same time.
To open the questions, we cited Ramaphosa’s order of 24 July, where the only explanation provided for Judge Sardiwalla’s discharge was that he had become “permanently incapable” of performing his duties.
“Given that the plaintiffs closed their case at the end of the fifth session of the trial in June 2023,” we asked, “do you assert that the timing of the discharge was a coincidence? If so, could you perhaps provide our readers with a more comprehensive account of why Judge Sardiwalla was discharged?”
The question did not elicit an answer from either of the parties.
Neither did the questions that followed. At the time of this writing, we still do not know why it took more than five weeks for the plaintiffs to be informed of Sardiwalla’s alleged “incapacity,” and we have not been provided any reason as to why a copy of the official discharge order was only furnished at the end of October, a week before the sixth session was due to begin. Similarly, we don’t know why, despite four written requests to Judge President Mlambo, the plaintiffs do not have a transcript of the meeting of 4 September.
But for us, again, it was the refusal to answer the final question that raised the likelihood of a conspiracy.
“Since his discharge on 24 July 2023,” we wrote, “Judge Cassim Sardiwalla has handed down at least five judgments, including but not limited to:
- Fedbond Nominees (Pty) Limited v Crypton Properties CC and Another, handed down on 7 August 2023;
- Keele v Legal Practice Council and Another, handed down on 22 August 2023;
- Gas Giants CC and Another v Economic Freedom Fighters and Others, handed down on 31 August 2023;
- Ngcebetsha and Another v Legal Practice Council of South Africa, handed down on 4 September 2023; and
- Matsi Law Chambers Inc v Lesiba Jeremiah Mailula, handed down on 7 September 2023.
As things stand, Daily Maverick has learnt, the matter has been referred to justice minister Ronald Lamola, who will apparently appoint a judge to replace Sardiwalla. There is no clarity, however, on whether the decision on a de novo trial will be up to the replacement judge, Judge President Mlambo or Lamola himself.
At stake, for the voting citizens of South Africa, is the democratic future of the country. If the order is made to start the trial from scratch, at least the position of the Ramaphosa cabinet will be clear: DD “The Cat” Mabuza has not run out of multiple lives just yet. DM
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Re: Dead Matter (Part One, Two & Three): How political corruption decimated Mpumalanga’s biodiversity
Outrageous Scandalous
Scandalous "Education is the most powerful weapon which you can use to change the world." Nelson Mandela
The desire for equality must never exceed the demands of knowledge
The desire for equality must never exceed the demands of knowledge
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Re: Dead Matter (Part One, Two & Three): How political corruption decimated Mpumalanga’s biodiversity
JUSTICE DELAYED
Tembeka Ngcukaitobi SC vs David Mabuza: Expert silk joins Fred Daniel’s legal team
Illustrative image | David Mabuza. (Photo: Gallo Images / Brenton Geach) | Tembeka Ngcukaitobi. (Photo: Gallo Images/Volksblad/Mlungisi Louw) | Conservationist Fred Daniel. (Photo: Supplied) | (Image: Rawpixel)
By Kevin Bloom | 29 Jan 2024
In December 2023, the same month that Daily Maverick revealed the discharge of the trial judge by President Cyril Ramaphosa, we received a tip-off that advocate and land rights expert Tembeka Ngcukaitobi had joined forces with Fred Daniel in his marathon legal battle against David Mabuza, South Africa’s former deputy president. Then, in late January 2024, the day after Ngcukaitobi confirmed his place at the head of Daniel’s team, it was revealed that the two senior counsel for the government defendants were likely to face a misconduct probe.
___________________________________________________________________________________________________________________________
The judge who exited the stage
“Did Fred [Daniel] let you know that Tembeka Ngcukaitobi has joined [his] team?” asked our source. “He says it’s the most important land case in South Africa.”
It was late December 2023, the country was on vacation, and the tip-off had arrived in the wake of deep confusion around the status of case number 34502/2010 of the Pretoria High Court.
As Daily Maverick had reported at the beginning of the month, for reasons that had to do with an alleged medical condition, President Cyril Ramaphosa had discharged the trial judge from service. For us, the all-important factor was the timing: it had happened just after the fifth session, when the plaintiffs had presented their final witnesses and closed their case.
Our reporting on Judge Cassim Sardiwalla’s discharge had drawn the ire of the Department of Justice and Correctional Services, which had accused us — in no uncertain terms — of “disinformation”. The fact was, however, that with the exit of Judge Sardiwalla, there was a very real chance the trial would begin de novo.
In other words, after more than 13 years of litigation, comprising tens of thousands of pages of correspondence, countless aborted case management sessions and upwards of 180 court days, the government defendants were now insisting that the self-funded plaintiffs — who had so far spent around R57-million on the case — needed to do it all again.
As anyone familiar with case number 34502/2010 would have known, the prodigious evidence that the plaintiffs’ witnesses had submitted under cross-examination to the Pretoria high court had dealt, in the main, with the so-called “land claims scam” — a many-tentacled organised crime operation, allegedly overseen by former deputy president David Mabuza, that had cynically abused the Restitution of Land Rights Act to enrich an unlikely cabal of ANC party loyalists and white Afrikaans middlemen.
The overall cost of the scam to the Mpumalanga economy, according to a 2015 report compiled by retired judge Willem Heath, was R35-billion. But that measurement, as devastating as it was to the province’s unemployment figures and tourism heritage, did not take into account the much more subtle damage to the South African Constitution. Because, if apartheid had been about anything, it had been about the removal of communities, clans and entire tribes from their ancestral lands — and here, section 25 of the Constitution, just like its legislative offspring the Restitution of Land Rights Act, had once been counted with the most enlightened land reform laws in the world.
Daniel’s consistent allegation, from when he had first blown the whistle on the land claims scam in the spring of 2004, was that the South African government — and by implication, the ruling ANC — had been stealing the land from the very people to whom it was supposed to be given back.
As Daily Maverick was intensely aware, then, if it was indeed true that Ngcukaitobi had joined forces with Daniel, his presence was likely to be a game-changer.
At the age of 47, as the son of a domestic worker from the former Bantustan of Transkei, Ngcukaitobi had already achieved what most local advocates could only dream of achieving in a lifetime. He had been an advocate of the Johannesburg Bar since the age of 33, a “silk” (senior counsel) since 43, and had served as an acting judge in the Labour Court, the Land Claims Court and the High Court of South Africa.
In 2017, on behalf of the Economic Freedom Fighters, he had argued successfully before the Constitutional Court that the speaker of the National Assembly was obliged to institute impeachment proceedings against President Jacob Zuma for his role in the Nkandla scandal.
In October 2019, he had been hired by President Cyril Ramaphosa’s new government, alongside legendary silks Geoff Budlender, Ngwako Maenetje and Wim Trengove, to assist with the investigation and prosecution of State Capture crimes.
Also, as far as his abiding interest in land rights went, he had published a pair of deeply enlightening and highly authoritative books: The Land Is Ours: Black Lawyers and the Birth of Constitutionalism in South Africa (2018) and Land Matters: South Africa’s Failed Land Reforms and the Road Ahead (2021).
The new advocate on stage
The concrete fact of Ngcukaitobi’s presence on the plaintiffs’ team would be confirmed on 22 January 2024, in a letter from the plaintiffs’ attorneys to Deputy Judge President Aubrey Ledwaba of the Gauteng Division.
In the letter, copied to Judge President Dunstan Mlambo and Nelson Govender, the state attorney assigned to case number 34502/2010, Daniel’s lawyers informed the judicial leadership that they were disputing — based on the plaintiffs’ constitutional rights to a fair trial — the de novo request of the defendants.
“The plaintiffs were advised on 6 November 2023 that Sardiwalla J could not finalise the trial,” the letter continued — referring to the very date, without overtly stating it, that the sixth session was scheduled to begin.
Accepting that Sardiwalla would no longer be presiding, the plaintiffs proposed the names of three retired judges — “Nugent J, Blieden J, or Griesel J” — who could all be approached at the discretion of Judge President Mlambo.
Then, in the sixth paragraph, the letter delivered the news: “The 1st to 7th Plaintiffs have now appointed senior counsel, Advocate T N Ngcukaitobi SC, to act on their behalf.”
Ngcukaitobi, since he was already on brief, could obviously not engage with Daily Maverick on the matter. But we did know that in November 2015, as an acting judge of the Land Claims Court, he had ruled against the Land Claims Commission and the office of the Mpumalanga premier — occupied at the time by one DD Mabuza — in a separate matter that involved the Ndwandwa Community Trust.
The essence of the judgment was that the indigenous Ndwandwa community, which held a valid ancestral claim to a large parcel of land in the Badplaas region, had been unlawfully represented in both name and stature by the Ndwandwa Community Trust. As Ngcukaitobi ruled, the R8.8-million that these false trustees had taken as a “development grant” from the Mpumalanga government should rightfully have been awarded to the original claimants.
It would not have been lost on Ngcukaitobi, we assumed, that this “hijacked” Ndwandwa Community Trust was the very same entity Daily Maverick would follow in early 2022, along a trail of documentary evidence that led through the second and third stages of the so-called “land claims scam” all the way to Mabuza’s wife.
The source of the documentation that mapped the unmistakable trail was no more and no less than Daniel’s personal litigation files — which, as we further assumed, would probably come in handy in the event that Ngcukaitobi ever needed to present the evidence to the High Court.
But, again, Daniel had closed his case in June 2023, after he was satisfied that the testimony of 17 witnesses — including his own — had fully presented his argument. The involvement of Mabuza’s wife, as far as the extant court record was concerned, would remain confined to paragraph 52 of Richard Spoor’s witness statement, wherein the Mpumalanga-based land rights attorney had testified to the following:
“To the best of my recall substantial sale commissions were paid to Premier DD Mabuza’s wife who was a Pam Golding estate agent.”
The question, therefore, was did the government defendants really want Ngcukaitobi to come with new evidence like the above in a de novo open court trial?
There were, of course, some awkward external factors for the government defendants to consider. For instance, the revelation — published by Daily Maverick in August 2022 — that criminal case dockets relating to the Ndwandwa Community Trust had mysteriously “gone missing” from the Badplaas police station.
By Daily Maverick’s reckoning, given that the essence of their documented “Stalingrad strategy” was to starve the plaintiffs of resources, the defendants were still betting that Daniel would run out of funds. But Ngcukaitobi, for his part, did not appear to have his eye on the conservationist’s last remaining coin.
As the letter of 22 January 2024 stated, Ngcukaitobi, in consultation with Daniel’s full legal team, had already prepared “a roadmap to expedite the finalisation of the special trial”.
This included, according to the seventh paragraph, a further judicial case management meeting where the agenda would address the “final witness list of the defendants” and “witness summaries of the defendants to curtail unnecessary cross-examination on issues that are not in dispute”.
Problematically for the government defendants, Ngcukaitobi was going directly at their soft spots — the full court record for case number 34502/2010, as well as Daily Maverick’s own reporting, clearly demonstrated their repeated refusal to submit to either of these requests.
How the stage is currently set
On 23 January 2024, the day after Daniel’s attorneys sent word of Ngcukaitobi’s appointment to the judicial leadership, News24 published a piece under the title, “As Namibian courts clash over arrest of Gupta advocates, SA legal body mulls misconduct probe”.
The central antagonists of the piece were Mike Hellens SC and Dawie Joubert SC, who also happened to be senior counsel for the government defendants in case number 34502/2010.
“After high-profile advocates Mike Hellens and Dawie Joubert failed to successfully appeal their immigration violation convictions in Namibia’s Supreme Court,” the report noted, “the Johannesburg Bar says it will consider whether they should face a professional misconduct probe.”
Coincidentally, that very same morning — 23 January 2024 — Daily Maverick had sent a 26-page questionnaire to the official spokespeople of President Ramaphosa and his justice minister, Ronald Lamola.
The gist of the questionnaire had to do with the transcript of the all-important case management meeting of 4 September 2023, which had unexpectedly come into Daily Maverick’s possession — and which suggested, based on the evidence, that not only had Hellens and Joubert arrived at that initial announcement of Sardiwalla’s alleged medical condition prepared, but also that the judicial leadership may have been sympathetic to their line.
Put simply, we wanted to know whether the presidency and the justice ministry agreed with the view of the Gauteng judicial leadership, repeated at a press conference in Sun City on 5 December 2023, that Judge Sardiwalla’s alleged condition was the sole and primary cause of the consistent delays to case number 34502/2010.
On 25 January 2024, after a follow-up message from Daily Maverick, Lamola’s spokesperson confirmed receipt of the questionnaire — a response would be forthcoming, he promised, by the deadline of 6 February.
Also in the first week of February, as Daily Maverick has learned, the judicial leadership will be deciding on a new judge for the case. DM
Tembeka Ngcukaitobi SC vs David Mabuza: Expert silk joins Fred Daniel’s legal team
Illustrative image | David Mabuza. (Photo: Gallo Images / Brenton Geach) | Tembeka Ngcukaitobi. (Photo: Gallo Images/Volksblad/Mlungisi Louw) | Conservationist Fred Daniel. (Photo: Supplied) | (Image: Rawpixel)
By Kevin Bloom | 29 Jan 2024
In December 2023, the same month that Daily Maverick revealed the discharge of the trial judge by President Cyril Ramaphosa, we received a tip-off that advocate and land rights expert Tembeka Ngcukaitobi had joined forces with Fred Daniel in his marathon legal battle against David Mabuza, South Africa’s former deputy president. Then, in late January 2024, the day after Ngcukaitobi confirmed his place at the head of Daniel’s team, it was revealed that the two senior counsel for the government defendants were likely to face a misconduct probe.
___________________________________________________________________________________________________________________________
The judge who exited the stage
“Did Fred [Daniel] let you know that Tembeka Ngcukaitobi has joined [his] team?” asked our source. “He says it’s the most important land case in South Africa.”
It was late December 2023, the country was on vacation, and the tip-off had arrived in the wake of deep confusion around the status of case number 34502/2010 of the Pretoria High Court.
As Daily Maverick had reported at the beginning of the month, for reasons that had to do with an alleged medical condition, President Cyril Ramaphosa had discharged the trial judge from service. For us, the all-important factor was the timing: it had happened just after the fifth session, when the plaintiffs had presented their final witnesses and closed their case.
Our reporting on Judge Cassim Sardiwalla’s discharge had drawn the ire of the Department of Justice and Correctional Services, which had accused us — in no uncertain terms — of “disinformation”. The fact was, however, that with the exit of Judge Sardiwalla, there was a very real chance the trial would begin de novo.
In other words, after more than 13 years of litigation, comprising tens of thousands of pages of correspondence, countless aborted case management sessions and upwards of 180 court days, the government defendants were now insisting that the self-funded plaintiffs — who had so far spent around R57-million on the case — needed to do it all again.
As anyone familiar with case number 34502/2010 would have known, the prodigious evidence that the plaintiffs’ witnesses had submitted under cross-examination to the Pretoria high court had dealt, in the main, with the so-called “land claims scam” — a many-tentacled organised crime operation, allegedly overseen by former deputy president David Mabuza, that had cynically abused the Restitution of Land Rights Act to enrich an unlikely cabal of ANC party loyalists and white Afrikaans middlemen.
The overall cost of the scam to the Mpumalanga economy, according to a 2015 report compiled by retired judge Willem Heath, was R35-billion. But that measurement, as devastating as it was to the province’s unemployment figures and tourism heritage, did not take into account the much more subtle damage to the South African Constitution. Because, if apartheid had been about anything, it had been about the removal of communities, clans and entire tribes from their ancestral lands — and here, section 25 of the Constitution, just like its legislative offspring the Restitution of Land Rights Act, had once been counted with the most enlightened land reform laws in the world.
Daniel’s consistent allegation, from when he had first blown the whistle on the land claims scam in the spring of 2004, was that the South African government — and by implication, the ruling ANC — had been stealing the land from the very people to whom it was supposed to be given back.
As Daily Maverick was intensely aware, then, if it was indeed true that Ngcukaitobi had joined forces with Daniel, his presence was likely to be a game-changer.
At the age of 47, as the son of a domestic worker from the former Bantustan of Transkei, Ngcukaitobi had already achieved what most local advocates could only dream of achieving in a lifetime. He had been an advocate of the Johannesburg Bar since the age of 33, a “silk” (senior counsel) since 43, and had served as an acting judge in the Labour Court, the Land Claims Court and the High Court of South Africa.
In 2017, on behalf of the Economic Freedom Fighters, he had argued successfully before the Constitutional Court that the speaker of the National Assembly was obliged to institute impeachment proceedings against President Jacob Zuma for his role in the Nkandla scandal.
In October 2019, he had been hired by President Cyril Ramaphosa’s new government, alongside legendary silks Geoff Budlender, Ngwako Maenetje and Wim Trengove, to assist with the investigation and prosecution of State Capture crimes.
Also, as far as his abiding interest in land rights went, he had published a pair of deeply enlightening and highly authoritative books: The Land Is Ours: Black Lawyers and the Birth of Constitutionalism in South Africa (2018) and Land Matters: South Africa’s Failed Land Reforms and the Road Ahead (2021).
The new advocate on stage
The concrete fact of Ngcukaitobi’s presence on the plaintiffs’ team would be confirmed on 22 January 2024, in a letter from the plaintiffs’ attorneys to Deputy Judge President Aubrey Ledwaba of the Gauteng Division.
In the letter, copied to Judge President Dunstan Mlambo and Nelson Govender, the state attorney assigned to case number 34502/2010, Daniel’s lawyers informed the judicial leadership that they were disputing — based on the plaintiffs’ constitutional rights to a fair trial — the de novo request of the defendants.
“The plaintiffs were advised on 6 November 2023 that Sardiwalla J could not finalise the trial,” the letter continued — referring to the very date, without overtly stating it, that the sixth session was scheduled to begin.
Accepting that Sardiwalla would no longer be presiding, the plaintiffs proposed the names of three retired judges — “Nugent J, Blieden J, or Griesel J” — who could all be approached at the discretion of Judge President Mlambo.
Then, in the sixth paragraph, the letter delivered the news: “The 1st to 7th Plaintiffs have now appointed senior counsel, Advocate T N Ngcukaitobi SC, to act on their behalf.”
Ngcukaitobi, since he was already on brief, could obviously not engage with Daily Maverick on the matter. But we did know that in November 2015, as an acting judge of the Land Claims Court, he had ruled against the Land Claims Commission and the office of the Mpumalanga premier — occupied at the time by one DD Mabuza — in a separate matter that involved the Ndwandwa Community Trust.
The essence of the judgment was that the indigenous Ndwandwa community, which held a valid ancestral claim to a large parcel of land in the Badplaas region, had been unlawfully represented in both name and stature by the Ndwandwa Community Trust. As Ngcukaitobi ruled, the R8.8-million that these false trustees had taken as a “development grant” from the Mpumalanga government should rightfully have been awarded to the original claimants.
It would not have been lost on Ngcukaitobi, we assumed, that this “hijacked” Ndwandwa Community Trust was the very same entity Daily Maverick would follow in early 2022, along a trail of documentary evidence that led through the second and third stages of the so-called “land claims scam” all the way to Mabuza’s wife.
The source of the documentation that mapped the unmistakable trail was no more and no less than Daniel’s personal litigation files — which, as we further assumed, would probably come in handy in the event that Ngcukaitobi ever needed to present the evidence to the High Court.
But, again, Daniel had closed his case in June 2023, after he was satisfied that the testimony of 17 witnesses — including his own — had fully presented his argument. The involvement of Mabuza’s wife, as far as the extant court record was concerned, would remain confined to paragraph 52 of Richard Spoor’s witness statement, wherein the Mpumalanga-based land rights attorney had testified to the following:
“To the best of my recall substantial sale commissions were paid to Premier DD Mabuza’s wife who was a Pam Golding estate agent.”
The question, therefore, was did the government defendants really want Ngcukaitobi to come with new evidence like the above in a de novo open court trial?
There were, of course, some awkward external factors for the government defendants to consider. For instance, the revelation — published by Daily Maverick in August 2022 — that criminal case dockets relating to the Ndwandwa Community Trust had mysteriously “gone missing” from the Badplaas police station.
By Daily Maverick’s reckoning, given that the essence of their documented “Stalingrad strategy” was to starve the plaintiffs of resources, the defendants were still betting that Daniel would run out of funds. But Ngcukaitobi, for his part, did not appear to have his eye on the conservationist’s last remaining coin.
As the letter of 22 January 2024 stated, Ngcukaitobi, in consultation with Daniel’s full legal team, had already prepared “a roadmap to expedite the finalisation of the special trial”.
This included, according to the seventh paragraph, a further judicial case management meeting where the agenda would address the “final witness list of the defendants” and “witness summaries of the defendants to curtail unnecessary cross-examination on issues that are not in dispute”.
Problematically for the government defendants, Ngcukaitobi was going directly at their soft spots — the full court record for case number 34502/2010, as well as Daily Maverick’s own reporting, clearly demonstrated their repeated refusal to submit to either of these requests.
How the stage is currently set
On 23 January 2024, the day after Daniel’s attorneys sent word of Ngcukaitobi’s appointment to the judicial leadership, News24 published a piece under the title, “As Namibian courts clash over arrest of Gupta advocates, SA legal body mulls misconduct probe”.
The central antagonists of the piece were Mike Hellens SC and Dawie Joubert SC, who also happened to be senior counsel for the government defendants in case number 34502/2010.
“After high-profile advocates Mike Hellens and Dawie Joubert failed to successfully appeal their immigration violation convictions in Namibia’s Supreme Court,” the report noted, “the Johannesburg Bar says it will consider whether they should face a professional misconduct probe.”
Coincidentally, that very same morning — 23 January 2024 — Daily Maverick had sent a 26-page questionnaire to the official spokespeople of President Ramaphosa and his justice minister, Ronald Lamola.
The gist of the questionnaire had to do with the transcript of the all-important case management meeting of 4 September 2023, which had unexpectedly come into Daily Maverick’s possession — and which suggested, based on the evidence, that not only had Hellens and Joubert arrived at that initial announcement of Sardiwalla’s alleged medical condition prepared, but also that the judicial leadership may have been sympathetic to their line.
Put simply, we wanted to know whether the presidency and the justice ministry agreed with the view of the Gauteng judicial leadership, repeated at a press conference in Sun City on 5 December 2023, that Judge Sardiwalla’s alleged condition was the sole and primary cause of the consistent delays to case number 34502/2010.
On 25 January 2024, after a follow-up message from Daily Maverick, Lamola’s spokesperson confirmed receipt of the questionnaire — a response would be forthcoming, he promised, by the deadline of 6 February.
Also in the first week of February, as Daily Maverick has learned, the judicial leadership will be deciding on a new judge for the case. DM
"Education is the most powerful weapon which you can use to change the world." Nelson Mandela
The desire for equality must never exceed the demands of knowledge
The desire for equality must never exceed the demands of knowledge
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Re: Dead Matter (Part One, Two & Three): How political corruption decimated Mpumalanga’s biodiversity
Mabuza's claws are still firmly clutched around the Lowveld, trust me!
Please check Needs Attention pre-booking: https://africawild-forum.com/viewtopic.php?f=322&t=596
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Re: Dead Matter (Part One, Two & Three): How political corruption decimated Mpumalanga’s biodiversity
I thought that he had lost influence, but obviously it is not the case 
"Education is the most powerful weapon which you can use to change the world." Nelson Mandela
The desire for equality must never exceed the demands of knowledge
The desire for equality must never exceed the demands of knowledge