Former Eskom head of legal, Suzanne Daniels, has threatened to sue senior advocate Nazeer Cassim for what she bills a “blistering and malicious” attack on her that compromised her credibility as a potential witness in the State Capture scandal.
In a formal complaint to the Johannesburg Bar Council, Daniels accuses Cassim of professional and ethical misconduct for his handling of her disciplinary hearing and subsequent public utterances about her bona fides and credibility as a whistle-blower.
Daniels says Cassim displayed an alleged bias toward her from the onset and had told her to resign in order to save her name and reputation during a side-bar conversation at the start of her disciplinary hearing in May. Cassim was the chairperson of the disciplinary hearing.
“I must also add that it was extremely demeaning and misogynistic of Advocate Cassim to suggest that I return to conveyancing after more than 12 years in the corporate environment as an in-house adviser and counsel.”
This was after Eskom charged her with several counts of misconduct relating to Gupta-linked deals and payments for the legal fees of its former chairman, Ben Ngubane, in a matter that had nothing to do with Eskom.
In his initial written response to the complaint, Cassim denied any wrongdoing and said he accepted Daniels’ right to sue him and apologised if she felt “offended” by his approach.
He also said he may have suggested that she considers conveyancing as he enquired about the prospect of the parties settling as a matter of course in terms of the Labour Relations Act.
She maintains that the essence of her complaint in that regard was not so much that Cassim had tried to get them to settle, but rather, “his sexist, demeaning and misogynistic approach” to her position.
While Daniels also takes issue with the manner in which Cassim ran her disciplinary hearing, the gravity of her complaint revolves around an interview the former acting judge gave journalist, Chris Barron, nine days after he ruled against her.
In a Q&A, published in the Sunday Times on 29 July 2018, Cassim said he didn’t think Daniels could be relied on as a state witness and that she had only stepped up belatedly to get public opinion on her side.
He was quoted, saying: “I found that she was not bona fide. That she was opportunistic. She was not candid when she claimed protection because she did not make full disclosure of her role.”
Asked what message his views on her case may send to other whistle-blowers, Cassim said: “The message is that as a senior executive when you see something is going wrong, if you’re too scared to blow the whistle, at least don’t participate in that wrong act and then come and say, ‘I now want to come clean’. You can’t be opportunistic and take credit simply to advance your own interests.”
The comments, Daniels says in her complaint to the Bar, were tantamount to a blistering and malicious personal attack on her person, adding that she reserves her right to sue him.
She now seeks “a severe sanction” to be imposed on Cassim for what she deems to be a “flagrant” breach of the rules.
“While the Uniform Rules of Professional Conduct, as recommended by the General Council of the Bar of South Africa allow a member to express an opinion in the media in general terms on an issue which is still pending, Advocate Cassim resolutely transgressed this rule by attacking me on a personal level and attacking my credibility as a potential state witnesses…”
She said Cassim had ruled on her testimony to Parliament which he admitted to not having watched at all. Yet, he expressed an “unequivocal view” on this and went even further in the media interview in which he was quoted saying that parliament had “absolutely” wasted its time listening to her testimony, Daniels said.
She further accuses Cassim of having made it impossible for her legal team to run her case effectively as he “curtailed” them at every opportune moment.
She further stated that although Cassim admitted during her hearing that he was not empowered to rule on her plea under the Protected Disclosures Act, he nonetheless spoke about it in the interview as if he had considered this.
“He conducted himself during the interview as if he purportedly made findings on the matter of my disclosures and status as a whistle-blower, yet the record of the disciplinary hearing will clearly show that he indicated that as the presiding officer of an internal hearing he was not competent to make such findings on the issue relating to my defence in terms of the Protected Disclosures Act.”
Daniels has taken the disciplinary ruling on review at the Commission for Conciliation Mediation and Arbitration and her case has now been referred to the Labour Court.
Her complaint against Cassim is to be considered by a committee of the Bar for a decision on the merits thereof.
The former head of legal and compliance at Eskom, was suspended by the parastatal in October and charged with several counts of misconduct, all of which she was found guilty on.
She was dismissed by Eskom last month on charges that included her having arranged R800,000 in payment for the legal fees for former Eskom chairman, Ben Ngubane, R1.6-billion in payments to McKinsey & Co and its off grid partner, Trillian and a R600-million prepayment for coal supply to the Gupta-owned Tegeta which had helped the family raise a shortfall in the purchase price for Optimum Coal Mine.
And, an email that Eskom believed she had sent to Gupta lieutenant, Salim Essa via a nondescript email address of firstname.lastname@example.org.
While Cassim, in his ruling, said this mail address was in all probability that of Essa, other information, including material contained in the Guptaleaks, suggest it was used by the former DG of Public Enterprises, Richard Seleke at one stage.
Although there is a long list of former Eskom managers and executives exposed for alleged wrongdoing during the Gupta reign at Eskom, she is to date the only one who has actually been subjected to a full disciplinary hearing.
Others like former CFO, Anoj Singh, widely considered one of the kingpins in the State Capture scandal, jumped ship in the face of disciplinary action.
Daniels has had to fight harder than most to be recognised as a legitimate whistle-blower and recently shared the emotional experience and the impact of this journey with the audience at the 10x Daily Maverick Media Gathering in Cape Town. DM
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