MPUMALANGA LEGAL WRANGLE

Mpumalanga magistrate asked to recuse himself in case involving Deputy President Mabuza

By Marianne Thamm 14 August 2018

Deputy President David Mabuza addresses the National Broad-Based Black Economic Empowerment (B-BBEE) Rural and Township Economy Summit at the East London International Convention Centre in the Eastern Cape, 15 January 2014. (Photo: GCIS) Themed “Transforming Townships and Rural Areas from being Consumer Communities into Entrepreneurial Societies” the summit follows the decision of the President’s Broad-Based Black Economic Empowerment Advisory Council and aims to ensure communities in townships and rural areas benefit from black economic empowerment, 19/07/2018. Jairus Mmutle/GCIS

A long-running and vicious battle between an Mpumalanga businessman and conservationist, Fred Daniel, who obtained an interim protection order against Deputy President David Mabuza to prevent the former premier from allegedly trying to run him off his land in the Great Nkomazi River Valley, took a turn in the Carolina magistrate’s court recently when a new magistrate hearing the matter was asked to recuse himself.

This after the magistrate, Sarel Grabe, had been seen in private discussion with Mabuza’s legal counsel, Mike Hellens SC (who has also been appointed to defend former President Jacob Zuma) on three occasions prior to a hearing in February.

Affidavits from witnesses to the encounter between Hellens and Grabe, including one by Daniel’s business partner, former ANC Treasurer-General and Premier of Mpumalanga, Mathews Phosa, who attended the hearing, have been handed to the court.

Mike Hellens’ response to questions by Daily Maverick with regard to the allegations and the affidavits were met with, “You clearly did not follow the proceedings accurately.” When asked what his version of the proceedings and events was, Hellens did not reply.

Daniel told Daily Maverick that Grabe had been appointed to hear the matter in Carolina earlier in August after the magistrate who had originally issued the interim protection order against Mabuza was “promoted” to a court in Polokwane.

Mabuza was due to contest the order in February 2018 but did not arrive at court in person to do so.

Hellens, at that hearing, had argued that the interim order that had been issued in January “constituted an abuse of the court process, and was wholly unsubstantiated and was over broad.

The respondent is the premier of Mpumalanga province. The interim order, as it stands, effectively impedes and prevents [him] from carrying out his legal, administrative and official duties,” Hellens reportedly said.

He argued that none of the disputes Daniel had with government departments involved Mabuza personally.

The complainant [Daniel] used the Harassment Act and threat of final protection order to express his discontentment with certain government departments within the province and to embarrass and inconvenience the respondent,” Hellens told the court.

The point, however, is that judicial officers may not privately engage with counsel in a contested matter in the absence of the opposing legal team and without consent.

Even if Hellens had been discussing the price of sausages with Grabe, their alleged tête-à-tête in a corridor in the court buildings and also allegedly in Grabe’s chambers would be in contravention of the Uniform Rules of the Professional Ethics and General Council of the Bar of South Africa.

Part of the interim protection order, granted by the court in January 2018 against Mabuza, includes an instruction that the Deputy President “refrain from any attempts or actions or instructions to drive the applicant [Daniels] out of the Great Nkomazi River Valley”.

The interim order also instructed Mabuza to “refrain from any direct or indirect activity or instructions, whether conversations ensue or not, that may lead to unfairly blocking, frustration or sabotaging the applicant [Daniels] in carrying out his business activities by withholding authority or permits which he is entitled to receive or get or be unissued with any provincial authority without any justification for such actions.”

Fred Daniel, among other projects, runs the Cradle of Life in Badplaas. It is an eco-tourism and conservation business which conducts research into biodiversity and endangered species including white and brown lions and tigers.

Daniel alleges that his troubles with authorities in the region date back to 2003 when he blew the whistle on an alleged land claims scam in the region. Mabuza was the MEC for Land and Agriculture in Mpumalanga at the time. Mabuza also chaired the Greater Badplaas Land Claims Committee at the time.

A R2.5-million suit against Mabuza and officials in several Mpumalanga government departments is still pending in the North Gauteng High Court. It is in relation to Daniel’s alleged loss of business due to the province’s refusal to grant him permits to operate his nature reserve.

In Daniel’s Heads of Argument for Grabe to be recused he states that “on three occasions during the course of the proceedings on 19 February 2018, magistrate Grabe and counsel for the respondent [Mabuza] were seen talking privately to each other, once in the passage, and twice in magistrate’s chambers.”

In his response to the allegation, Hellens, said Daniel, did not deny these three encounters.

Instead it is contended that the respondent’s counsel will confirm from the bar that ‘at no stage did he hold any private discussions relating to this matter’.”

Regardless of whether it was this matter or another, Hellens was violating rules and professional ethics, said Daniel.

He added that it was plain from the court record that the “present matter was not only contested, but robustly and vehemently contested.”

Daniel posits that it was not necessary for him, as the litigant seeking recusal of a presiding officer, to establish actual bias on the part of the officer “but merely a reasonable apprehension of bias on his part”.

An elementary requirement in order for justice to be seen to be done, said Daniel, was “to avoid the appearance that justice is being administered in secret, that the presiding judicial officer should have no communication whatever with either party except in the presence of the other.”

In a supplementary affidavit Mathews Phosa, a lawyer, said that “as an officer of the court I was taken aback when I observed counsel for the respondent in private conversation with the presiding magistrate in his office, without the presence of counsel for the complainant.”

Mpumalanga businessman, John Allen, also submitted a supplementary affidavit in which he stated that he had attended the court matter on 19 February.

For most of the morning on 19 February 2018, I observed how respondent’s counsel ridiculed the applicant” adding that “during one of the adjournments, I followed a visibly upset applicant who was on his way to the toilet.”

As it happened, the applicant found the respondent’s senior counsel talking to Mr Grabe in the passage.”

Daniel had asked Grabe and Hellens why they were talking privately.

Mr Grabe and Hellens appeared shocked and disappeared without giving any explanation as to why they were talking and what they were talking about,” said Allen.

He also confirmed that he had seen Hellens “talking in private chambers with Mr Grabe on two occasions on 19 February, 2018. I do not know what they spoke about.”

The case was postponed on Monday to 27 August for judgment on the matter.

The case between Daniels and Mabuza and other officials has been widely reported by City Press and the Mail & Guardian.

Daniel has accused Mabuza and other officials in Mpumalanga of directly and indirectly attempting to drive him out of the Great Nkomazi River Valley through denying him the reissuing of permits. He has accused the Regional Land Claims Commissioner and the Mpumalanga Tourism and Parks Agency of “being forced under the pain of death to implement the unlawful instructions of politicians”.

Mabuza’s office, through his spokesperson Zibonele Mncwango, has consistently denied Daniels allegations. Mncwango claimed that allegations by Daniel were not true, and malicious, and were aimed at “tarnishing his [Mabuza’s] image”. DM

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