OUR BURNING PLANET
Conservationist vs Deputy President Mabuza: Fred Daniel gets his R1bn day in court after 11 years
Since July 2010, conservationist Fred Daniel has been seeking justice in the Pretoria High Court for the loss of his 39,000-hectare nature reserve — which, he argues, was brought about by his run-in with the Mpumalanga politicians that were behind the alleged land claims scam. The opening day of the virtual trial saw explosive testimony from forensic investigator Paul O’Sullivan on the ‘Problem Animal Fund’.
Pitched as a battle between Daniel and Deputy President David Mabuza, the matter finally went to trial on Tuesday. The opening day of the virtual trial saw explosive testimony from forensic investigator Paul O’Sullivan on the “Problem Animal Fund”.
“The problem we have here is that the animals don’t just need to be protected, they need to be protected from the people that are protecting them,” said O’Sullivan, around 25 minutes into the first day of the virtual trial of case number 34502/2010 in the North Gauteng High Court.
The time was 12.30 on 17 August 2021, and since 19 July 2021, when the trial was meant to have kicked off, Daily Maverick had been seeking access to the documents and transcripts that we knew were out there somewhere. Given the matter’s history and cast of characters, we had every reason to suspect that the defendants in the case – either government entities or former and current employees of the state – had been leaning on the so-called “Stalingrad strategy” to ensure that the evidence was never heard by a South African court.
As outlined in our three-part “Dead Matter” series published in March 2021, the R1-billion civil claim, initially filed in July 2010, had been cast as a David and Goliath battle between conservationist Fred Daniel and Deputy President David Mabuza. As far back as 2003, when he was still buying up farm plots in fulfilment of his vision to regenerate one of the most threatened biomes on Earth – a vision, we noted, that for a time had become a reality under the name of “Nkomazi Wilderness” – Daniel had been blowing the whistle on the alleged land claims scam run by the Mpumalanga provincial government.
And Mabuza, when he took over as the Mpumalanga MEC for agriculture and land affairs in 2008, had reportedly taken the scam to a whole new level – so much so that in 2017 O’Sullivan would open a case of fraud against the future deputy president, arguing on his website that “pretty much all the land restitution claims in Mpumalanga” during Mabuza’s tenure as MEC were false.
For his troubles, even after he had been forced to sell his 39,000-hectare private reserve – and forgo the backing of Sol Kerzner’s One & Only Group, which had bought into the vision of expanding Nkomazi Wilderness into Africa’s seventh trans-frontier park – Daniel would face down harassment, arson, smear campaigns and death threats. He would become convinced that Mabuza was behind many of the attacks, pointing to a phone call (for which he held the cellular records) where the ANC heavyweight had allegedly persuaded him to accept the “false land claims” on Nkomazi, failing which “[his] safety could not be guaranteed”.
Mabuza, for his part, denied these accusations.
“[Daniel] is a businessman who allegedly invested millions in developing the Nkomazi project,” Mabuza testified in March 2011, in the only affidavit that he ever submitted to the North Gauteng High Court. “His main concern centres around the ‘land claims issue’. That issue was fully investigated and reported on. It was also fully ventilated in the Land Claims Court.”
But there had been no “full investigation” of the issue that Daily Maverick could locate, other than the forensic audits conducted by Ernst & Young (now called EY), Derrick Griffiths of the Institute of Valuers and O’Sullivan, which had all concluded that the land claims scam was real. Neither could Daily Maverick find any evidence that the Land Claims Court had ventilated the matter.
By all accounts, the trial would be the first time that senior politicians would have to answer for the scam, which was why, presumably, the counsel for the defendants were playing what Daniel’s advocate, Jacques Joubert, alleged was an “obstructionist” game.
From Daily Maverick’s perspective, as outlined in the third part of our “Dead Matter” series, Joubert had provided ample evidence that Mabuza was “abusing his position of power” to deny Daniel his Section 34 constitutional right to a fair public hearing. And so, beginning on 4 August 2021, we engaged our own lawyers in an attempt to gain access to the court documents and the trial itself.
Thanks to the efforts of our attorneys, our introduction to the trial appeared to land directly on script.
“I think the judge will rule on that and not you,” Mabuza’s advocate, Mike Hellens, said somewhat curtly to Joubert, less than a minute after Daily Maverick had been given the link to the virtual courtroom.
Hellens, it appeared, did not want to allow O’Sullivan to take the witness stand unless there was an independent observer at his physical address – a measure, he argued, designed to ensure that the witness “wasn’t prompted”.
But Joubert dispatched with the objection quickly, asking O’Sullivan to pan his camera around the office at his residence in London, from where he was providing testimony. Shortly thereafter, Joubert explained that O’Sullivan would be giving evidence on the land claims issue once he had testified on the so-called “Problem Animal Fund” (a pair of narratives, as Daily Maverick pointed out in the second part of our series, that appeared to be interlinked).
As an introduction, O’Sullivan explained that his charity, Forensics for Justice, had as its objective the exposure of South African citizens who were involved in corruption, particularly if those citizens were employed by the state. In the second quarter of 2009, he stated, he was approached by Charles Ndabeni, the then CEO of the Mpumalanga Tourism and Parks Agency (MTPA), to conduct an investigation into one of the agency’s divisions, known as Wildlife Protection Services.
“During that investigation, I became aware that a bank account was being operated,” O’Sullivan testified, “a bank account that was outside the control of the MTPA. It was managed by a couple of individuals, and those were individuals that were running the Wildlife Protection Services, Jan Muller and a chap by the name of De Beer.”
One day in late 2009, O’Sullivan continued, while he was at the Standard Bank offices in Simmonds Street, Johannesburg, “investigating ways of stamping out the fraud that was taking place on the MTPA’s bank accounts,” an instruction came through “to transfer an amount of three point something million rand from the operating account of the MTPA into the Problem Animal Fund bank account… signed by the chief operating officer and another senior officer at the MTPA.”
Using his power of attorney, O’Sullivan stated, he instructed the bank not to transfer the funds until he had looked into the matter. “That’s what triggered the investigation that I did into the Problem Animal Fund,” he said.
In the report that he presented to Ndabeni in 2010, O’Sullivan then explained, he noted that the Problem Animal Fund had morphed from its original intention into “nothing more nor less than a slush fund.” The slush fund was being used, he said, to bypass the Public Finance Management Act, whether for buying or for selling.
“Whenever they did any buying, they just went out and bought. Whenever they did any selling, and the only selling they were doing was the selling of hunting rights, they sold to whoever they felt like selling those rights to. I think I analysed a period of six weeks where six animals were shot, and a large amount of money came into the account, and there were no proper quotations for how that money was spent.
“Nobody could give me an explanation as to why the animals had to be shot. The most common animals being shot were hippos and buffaloes, which were quite high up on the list of hunters’ wishes. And in one case I saw a discrepancy, a hippo was shot one day for R15,000 and another day was shot for R20,000. So none of those figures added up, nobody could give a proper explanation.
“When I asked, ‘why couldn’t you put the animal back from where it had allegedly escaped?’ – and in most cases, these animals had escaped from the Kruger National Park – I was told it was much easier and cheaper just to shoot them.”
O’Sullivan had further noted in his report, which Joubert had submitted as part of the evidence, that the operators of the fund had “decided one day to go out and buy an aircraft”.
They bought “a little kit-type aircraft known as a Fox,” O’Sullivan testified, “which was an experimental aircraft, and yet they were using it for work purposes.” By law, said O’Sullivan, “you can’t use an experimental aircraft for commercial purposes.” But after they bought the aircraft, he said, “they decided they’d all get themselves pilot’s licences, so then they had to pay somebody to give them flying lessons on this aircraft, which is what they did, and that was public funds.”
Once the report had been handed in to Ndabeni, O’Sullivan concluded, he was informed that “the chief finance officer shut down the fund the following week”, transferring the money “into the operating account of the MTPA”.
Joubert, who had let O’Sullivan speak for at least 10 minutes, now had a question of clarity.
“So the Wildlife Protection Services have a mandate to protect the wildlife, am I correct?”
“Yes,” said O’Sullivan, “in fact, in my report, I made the point that the senior management of Wildlife Protection Services were themselves conflicted, because all of them were professional hunters. And therefore they were associating in an environment where people were hunting wildlife. I also made the point in my report that the decision whether to dart an animal… or to hunt it, that decision lay with these executives.
“They could not give me one example of an animal that had been darted and put back in the reserve it had escaped from, which meant every single animal that escaped was shot.”
At this point, Joubert attempted to upload O’Sullivan’s report, but was met with technical difficulties. The judge called an adjournment for lunch, with O’Sullivan explaining that he would have to complete his testimony at a later date – given that the trial had been postponed for a range of reasons since mid-July, he had prior “family commitments,” he said.
Still to come, as far as the narrative in Daily Maverick’s “Dead Matter” series showed, was the evidence of altercations between Fred Daniel and Jan Muller of Wildlife Protection Services, as well as the alleged part played by South Africa’s future deputy president in the land claims scam.
After lunch, there were more technical difficulties, which may or may not have been unforeseen. The parties, as per the live proceedings, could not decide whether to carry on with Microsoft Teams or to move the trial to Zoom. It was a new problem, a Covid-era problem, which meant that another few hours of the 39-day trial had been lost. Still, it was nothing short of a miracle that Daniel had finally won his day in court.
After 11 years, tens of millions of rand in legal fees, smear campaigns and death threats, 17 August 2021 was a day that would probably go down in history. DM