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Conservationist vs David Mabuza: Court hears evidence o...

Our Burning Planet

OUR BURNING PLANET

Conservationist vs David Mabuza: Court hears evidence of massive land claims fraud

Illustrative image | Sources: Deputy President David Mabuza. (Photo: J Countess / Getty Images) | Fred Daniel. (Photo: Supplied) | GroundUp / Ashraf Hendricks | Twitter
By Kevin Bloom
08 Sep 2021 22

The Pretoria High Court has heard that in the winter of 2008, behind a hostage situation in the Badplaas police station and a violent protest outside the Nkomazi Wilderness nature reserve, the spectre of David Dabede Mabuza loomed large. Despite the best attempts of the deputy president’s counsel to quash the evidence, the court also heard testimony that linked these events to massive land claims fraud, with the findings of investigator Paul O’Sullivan laying out the paper trail.

 

Note: Since March 2021, when our three-part “Dead Matter” series was published, Daily Maverick’s “Our Burning Planet” division has been reporting on the R1-billion civil suit brought by conservationist Fred Daniel against a host of government entities. The full background to the trial, which kicked off on 17 August 2021 after a wait of 11 years, can be accessed here, here and here

On the first day of the trial, thanks to the efforts of our attorneys, Daily Maverick was granted access to the virtual proceedings and the full court record. On 20 August 2021, Deputy President Mabuza’s advocate, Mike Hellens, sought an order from the judge that barred us from citing evidence that had not yet been heard in court. Judge Cassim Sardiwalla granted the order.

I.

“I remember he was standing on the back of a bakkie and he was addressing people with a microphone,” said Kobus Vermeulen, referring to David Mabuza, the future deputy president of South Africa. “He basically applauded them and told them not to worry, that the land will be given back to its lawful claimants.”

The date was Friday, 20 August 2021, and this was the first time that Mabuza’s name had been mentioned by a witness under oath. The virtually-run trial, which had kicked off three days before with the testimony of forensic investigator Paul O’Sullivan, had lost most of the week to technical difficulties. But now, 11 years and one month since case number 35402/2010 had been lodged in the Pretoria High Court, the moment had arrived. 

For 30 minutes already, Vermeulen, a former detective inspector with the Badplaas branch of the South African Police Service, had been giving testimony on a series of events that had occurred in the winter of 2008, when Mabuza was serving as the Mpumalanga MEC for agriculture and land affairs. On 27 July of that year, Vermeulen had begun, he was called out to answer a complaint from Fred Daniel, the founder of the Nkomazi Wilderness nature reserve. Two local youths had climbed through a hole in the reserve’s fence, it turned out, and Daniel simply wanted the matter reported. 

“What happened after the incident with the fence?” asked Jacques Joubert, Daniel’s advocate. 

“Well, while we were still at the scene, Mr Pro Khosa arrived,” said Vermeulen. “He was the ANC councillor at the municipality. He came and started shouting at us while we were still busy talking to the two suspects. He called us names and he made the whole situation uncomfortable, so much so that he started insulting Mr Daniel. At one stage, I had to ask Mr Daniel to leave the scene… I tried to explain to Mr Khosa that nobody is going to be arrested, we are only there to assist the juveniles, by warning them not to use the damaged fence as the entry or exit to the farm.”

But then, Vermeulen testified, after Khosa had “pushed the two suspects into his private vehicle” and driven off, something happened that would haunt him for the rest of his life. 

Once back at the police station, Vermeulen got wind that Khosa was “making numerous phone calls for people to come and help him”, so he quickly left for his house, which was across the road. Through his front window, Vermeulen could see a crowd gathering at the station. Later that day, he testified, he was asked to return to the station, because the parents of the two youths wanted to talk to him. 

“I found maybe more than 30 people waiting for me,” the witness continued. “As I entered the police station, they immediately got hostile… and at no stage could I get a word in with the parents of the juveniles. It was me and Van Rooyen, they wouldn’t let us in or out. I saw that the thing was getting out of hand and I wanted to exit the police station, to go home. And at that stage Mr Pro Khosa assaulted me physically, by grabbing me around the neck and throwing me into the charge office area. He told us straight that nobody will leave the police station until he’s done.”

“You were kept hostage there,” said Joubert, “how long were you kept hostage?”

 “I would say it was from 7 o’clock till 10 o’clock that night.”

“And how did it end?”

“We were stuck there and I was afraid that it might get more violent. I contacted Colonel Danie Hall from the province office in Middelburg, and I think he was the commander of the serious and violent crimes unit at the time. I explained to him the situation. He told me to keep calm… and he will get somebody to come and assist us. So we kept calm and tried to refrain from any further contact with the people, and then [police] from Elukwatini came to the station to free us.” 

When Joubert then reminded Vermeulen that he had later laid a criminal charge against Khosa, requesting his interpretation — “as an experienced policeman” — of the reasons behind the incident, the court heard the following response:

“I understand that they elected a committee, which was called the Greater Badplaas Land Claims Committee, and I know that [Khosa] was part of that. And I also knew that he was the ANC councillor at the municipality at the time.”

Said Joubert: “The Greater Badplaas Land Claims Committee that you refer to is defendant number 25 in this case. So you understood that the hostage situation related to land claims, am I correct?”

“It was stated clearly by Mr Pro Khosa,” answered Vermeulen, “that his intention was not at all to help the juveniles. It was all about the opportunity to create a bigger scene… the scene that happened [at the police station] had nothing to do with the fence that was damaged…”

“It had everything to do with land claims, didn’t it?” Joubert asked.

“Yes, absolutely.”

At which point, Advocate Mike Hellens, who, as previously reported by Daily Maverick, had been retained by Deputy President Mabuza in his personal capacity, spoke up: “Objection! That’s a straightforward leading question.” 

“Struck off the record,” said Judge Cassim Sardiwalla.

“As the court pleases, my lord,” said Joubert. “So you’re saying that the Greater Badplaas Land Claims Committee was involved, you’ve already testified to that. You’re saying they were involved in the hostage-taking, is that correct?”

“Yes,” answered Vermeulen, “that’s correct.”

II.

To anyone familiar with the history of the case, it was clear that Joubert’s task now was to demonstrate the link between the Greater Badplaas Land Claims Committee and Deputy President Mabuza. In early 2021, while reporting our three-part “Dead Matter” series, Daily Maverick had come into possession of an email that firmly established the link.

This, however, was a South African high court — and fully aware of the court’s power, Hellens had opened the morning with a request to the judge that Daily Maverick not be allowed to “willy-nilly pick evidence” that had not yet been led in the trial. 

The judge, after Daily Maverick’s lawyers had been called into the virtual proceedings, granted Hellens his wish. And so at the end of Vermeulen’s testimony, when Joubert referred to “an email that puts everything in context”, Daily Maverick was well aware of its import. But because Hellens would successfully object that Vermeulen was not qualified to comment on the email, we found ourselves barred from divulging its contents.  

Still, just before the matter of the email came up, Joubert had done what nobody in a South African high court had ever managed to do — he had led oral testimony that pointed to the connection between Deputy President Mabuza and the alleged land claims scam

Around 20 minutes into his testimony, Vermeulen stated that less than a week after the hostage incident, on 2 August 2008, he received a “panicked call” from Daniel about “people gathering, burning tyres and blocking the road” opposite Nkomazi Wilderness. Vermeulen testified that because the Badplaas police had been instructed “not to get involved”, he decided to drive out to the scene in his private vehicle. He was not dressed in uniform, he said, and his interest was mainly “to see why no policemen were acting”.

The crowd, which numbered “a hundred plus” in Vermeulen’s estimation, were “jumping on [Nkomazi’s] fences” and “breaking them down with iron bars”. He saw buses and bakkies parked alongside the road, he stated, confirming for the court that it was a “violent protest”. Later that morning, at around 11.30, Vermeulen watched as “Mr David Mabuza arrived on the scene”, accompanied at last by the police — that was when the crowd applauded and “things settled down”, he testified. 

“It was actually as if people expected [Mabuza] to come,” Vermeulen added, in response to a question from Joubert, “That was the impression I got. Because we didn’t receive any information [about the protest] from the police station, from any of the commanders. That’s why when Mr Mabuza arrived on the scene, I thought, okay, maybe this is why the protest was called.”

After Mabuza had climbed on to the back of a bakkie to inform the protesters that the land would be returned to its lawful claimants, the protest came to an end. 

Cross-examination from Hellens lasted less than 10 minutes, focusing on the possibility that Mabuza may have arrived at the protest with the sole intention of “calming the crowd”. Hellens also wanted to emphasise that Mabuza had in fact referred to “lawful” claimants — implying, of course, that no reference to illegal land claims had been made by the future deputy president. 

And with that, no further evidence would be led in the virtual trial for another two weeks. For 10 full court days, so-called technical difficulties and matters of procedure would eat into the allotted 39-day trial, with the bulk of the time lost to an amendment to the plaintiffs’ particulars of claim that the defendants refused to accept without a fight. But at 1.15pm on 6 September 2021, despite all attempts by the defendants’ counsel to continue with their alleged use of the “Stalingrad Strategy” (as outlined at length in a previous Daily Maverick feature on the trial), O’Sullivan would take the stand to complete his testimony. 

This time, the evidence against Mabuza would turn out to be devastating.  

III. 

It had all begun in 2014, O’Sullivan testified, when he was approached by a member of the Economic Freedom Fighters (EFF) to look into alleged land claims fraud in the province of Mpumalanga. The town of Badplaas was mentioned, O’Sullivan stated, which reminded him that he had been handed a file on Daniel a few years earlier. The file, which had been compiled by Jan Muller, the former head of Wildlife Protection Services in the Mpumalanga Tourism and Parks Agency, had attempted to discredit Daniel — O’Sullivan did not read the contents, he said, because his report on fraud and corruption within the agency (in which Muller had been identified as a key instigator) had already been completed. 

But then in 2013, said O’Sullivan, when he was introduced to Daniel by chance, he remembered the file. Although he told Daniel about its existence, he did not hand it over until the latter issued a subpoena. A year later, O’Sullivan stated, after he had decided to investigate the EFF’s allegations of land claims fraud — which he did on a “pro bono basis”, he made clear, through his charity Forensics for Justice — he realised that Daniel could offer him assistance. 

“I was able to get some insight from Mr Daniel by virtue of the fact that I wanted to identify farms [in Badplaas],” O’Sullivan told the court, “and, as you may know my lord, if you look at a farm on the title deed, you then have to work out where it is geographically on the land”. 

It was through Daniel’s knowledge of the region, O’Sullivan stated, that he was able to scan a map and randomly choose five farms.

“If you try to investigate on a broader basis, the investigation is going to take a lot longer and it will cost a lot of money,” he explained. “We didn’t have the resources for a long-drawn-out investigation. We came to the conclusion that what happened to those five farms was probably what happened to all of the farms in the region.” 

“And what was that, Mr O’Sullivan?” asked Joubert.

“Well, there were basically fake land claims.”

Which was when, right on cue, Hellens lodged his first objection of the afternoon. 

“This witness has not been qualified in any of the areas of expertise that would allow him to conclude that a land claim is false,” Mabuza’s advocate stated. “If you look at his CV, he’s a civil engineer and he’s had some forensic training. He has no expertise in land claims, he is not a lawyer, he cannot interpret the Restitution of Land Rights Act.”

It was a strategy of disruption that Hellens would follow through the first half of O’Sullivan’s testimony, interjecting whenever possible, eventually earning the censure of the judge. At this first objection, however, Judge Sardiwalla ordered O’Sullivan to focus on the findings of his investigation and not draw any conclusions.   

“Well,” said O’Sullivan, when he was told to continue, “that’s exactly what’s contained in my report, not opinions but findings. Our findings were that the land claims themselves were fraudulent.”

“Are you saying that the transactions were fraudulent?” asked the judge.

“Yes, my lord, the transactions were used as a device to extract large sums of money from the public purse, by creating the impression that certain parties had been pushed off the land and therefore complied as claimants with the [Restitution of Land Rights Act], when in fact the land had not been in indigenous African hands since at least the 1860s or 1870s.”  

This, given that the act had stipulated dispossession after June 1913 as the primary basis for a valid land claim, was the core of the issue. O’Sullivan testified that in the title deeds to the five farms, which his intern had accessed in the public records — and which, he added, had all been submitted as evidence before the court — he’d discovered that “white Boers” had settled the land well before the legislated date.

O’Sullivan also found, he testified, that the prices of all of the farms had been “artificially inflated”, in one case “by an amount of two thousand percent”. This he discovered after examining the public record of transactions and comparing the prices of earlier sales with the prices of more recent sales, he stated.

“Objection!” the voice of Hellens erupted again on screen, “the witness is not a qualified land valuer.”

“When I said ‘inflated’, my lord,” O’Sullivan continued, “I am talking about, on that date the land was sold for x price and on that date, which is a few months later, it was sold for y price, which just happened to be twenty times x.” 

“Your lordship will note that the witness is acting as his own counsel,” said Hellens. 

The judge, now rubbing his temples, asked Joubert to respond. But just as Daniel’s advocate was beginning to do so, Hellens cut in again, arguing that Joubert was “not allowed in response to an objection” to say that “he just wants to get on with the case”.

Judge Sardiwalla, for the first time since the trial had begun, appeared to lose his temper. 

“Sorry, sorry, sorry!” he said to Hellens, “you don’t simply start talking, you seek your indulgence from the court. You don’t simply butt in, this is not a table tennis match… Please!”

IV.

A graph from O’Sullivan’s published report, which clearly showed the inflation of land values, was perhaps the first item of evidence that Hellens did not want the court to see. But with all of the advocate’s objections overruled, O’Sullivan now had a free run. The witness numbered the properties from one to five, noting for the court that “property one” had passed through the deeds office in November 1999 for a price of R1.66-million, whereas in October 2003, after passing through the deeds office again “as the subject of a land claims transaction”, the value had risen to R8.29-million. 

And so it went, with the price of “property two” inflated from R2.62-million to R4.14-million in slightly more than a year; the price of “property three” inflated from R250,000 to R5.73-million in six years; the price of “property four” inflated from R974,000 to R3.35-million within a matter of a few months, and the price of “property five” inflated from R1.6-million to R4.47-million in less than two years.  

“I see there that you refer to a gentleman by the name of Visagie,” said Joubert, indicating an item in the report.

“Yes, Visagie,” O’Sullivan responded, “so our investigations found that Pieter Visagie, his name and ID number there, was the architect of the fraud that took place in respect of those properties. When we tried to speak with Mr Visagie, he lawyered up and we got threatening letters saying that we must stay away.”

“I see in your report,” said Joubert, “the second last paragraph, you use the word ‘on-sold’. Can you explain what you mean by that?”     

“So okay, we spoke to one of the farmers in question. He didn’t want to go on record, but he explained exactly what had happened. And it was that Visagie had come to him and told him, ‘Listen, I’ll buy your farm off you.’ And then he entered into a deed of sale that had certain suspensive conditions… one of the conditions was that the farmer, who was resident on his own land, should not oppose any land claim. If he didn’t oppose the land claim, the transaction would go through and the farmer would be paid the purchase price.

“But the farmer’s purchase price was subsequently found to be somewhat lower than the amount that Mr Visagie was paid by the Regional Land Claims Commissioner. So he was acting as a middleman in putting together these [transactions], and then arranging for the transactions to go through as valid land claims in terms of the relevant section of the [Restitution of Land Rights Act]… Visagie was paid out, and he then paid the farmers.”

Years later, when he personally visited the five farms and interviewed the occupants, O’Sullivan testified, he “couldn’t find any community member who was legally occupying the land”.     

For the next five minutes, Joubert stuck with the various graphs in O’Sullivan’s report, noting that the escalation of values after the land claims was “just unbelievable”. 

“Well, that’s the point that we made,” said O’Sullivan, “we didn’t just file a report, my lord, we opened a criminal docket with the police. To this day, to my knowledge, nobody has been arrested or charged.”

Although he hadn’t yet named Mabuza, O’Sullivan later made clear that the criminal docket had been opened against Visagie and “the former premier of Mpumalanga”. He further testified that, on the basis of the investigation into the five farms, the size of the fraud in the entire region had been estimated at “somewhere in the region of R2-billion”. 

It was then, at around 2:50pm, that the most devastating items of evidence made their appearance. First, Joubert shared on the screen a letter dated 9 December 2008, from “Land Reform Services” in the Mpumalanga provincial government’s department of agriculture and land affairs to the “Office of the MEC”. 

“What we found rather strange,” testified O’Sullivan, “was that there were letters and memorandums being pushed around which were motivating cash payments to Mr Visagie… It was our conclusion that the payments in question amounted to a further fraud and we requested the state to investigate that as well.”

Joubert now asked O’Sullivan to explain this particular letter in detail.

“Okay, so, if you look at the document, it’s five or six pages of memorandum, purportedly to motivate additional payments over and above the monies which were paid in respect of those five farms. And in this particular case they give a whole big explanation as to why the monies should be paid. I’d like you to go to the last page, if you can. There you see the allegation was that Mr Visagie expected to get R21-million and he only got R18-million, and therefore the government should pay another R3-million.”

“At the time,” said Joubert, “I understand that the MEC [of the department] was Mr Mabuza. Is that correct?’

“That’s correct, my lord.” 

The exact amount that was being motivated for payment to Visagie, Joubert then established from the document, was R3,347,629. 

“Let me show you the next letter,” said Joubert, “which will also be marked as an exhibit.” 

This letter, dated 6 January 2009, was from a “Ms T Seboka” of the Regional Land Claims Commission. On the second page, above the signature of Mabuza, could be found the MEC’s “considered opinion” that the RLCC should pay to Visagie the sum of R3,347,629.   

On the morning of 7 September 2021, during cross-examination, Hellens again attempted to discredit O’Sullivan as a witness, bringing into question his qualifications as a forensic investigator. The rest of the day was given over to a granular interrogation of apparently minor aspects of O’Sullivan’s testimony. With Wednesday, 8 September lost again to “technical difficulties”, at the time of this writing there were only two court days remaining from the entirety of the 39-day trial. Also, remarkably, only two witnesses had so far given testimony.

The question was, had this all been a successful application of the Stalingrad Strategy, or had the long-standing allegations of Mpumalanga land claims fraud finally found their day in an unbiased court?  

For his part, Judge Sardiwalla had repeatedly indicated that the judge president wanted the matter to run its full course. But with Daniel’s personal funds far from limitless, there were no guarantees. 

One thing was certain, however: if the trial were to continue later this year or early next year, counsel for the defence would be hard-pressed to earn their fees. At a cost to the South African taxpayer of a reported R250,000 per day — including two seniors and two juniors — they had already allowed a whole bunch of evidence to slip through. DM/OBP

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  • “Land being given back to its legal claimants?” That would be the San tribe – the only real indigenous people of South Africa – the rest of us ( black and white) are all migrants!
    Politicians and Parties should remember this when espousing politicized land claim statements. The original people of this country have been absorbed into new tribes – giving us all the benefit of the doubt! What politicians should be doing is unifying the people of this country to build a better future for the next generations. That ambition seems to have been forgotten throughout the world!

    • I agree Jane. The agenda of transformation seems to have dissipated and the vile scramble for money in our governance has brought hopes smashing down. No leadership at all.

  • Very interesting. There are thousands of land claims that cannot be settled due to the “shortage of funds.” It would be interesting for Mr ‘O Sullivan to investigate why R1,14Bn was paid for Mala Mala. I know it is a prestigious private game reserve but that is a lot of money for one farm when there is a cash shortage in the department.

    • It would be interesting to get a proper perspective on that especially s it seems to me that that land claim was entirely fraudulent. I think government accepts that as well but can’t do anything about it without admitting that it didn’t do its homework.

  • “For his part, Judge Sardiwalla had repeatedly indicated that the judge president wanted the matter to run its full course. But with Daniel’s personal funds far from limitless, there were no guarantees.” and this is exactly what the skelms want. dd is being funded by you and I, the tax payers and the complainant must fund himself. How on earth can this be fair? There is no equality before the law in SA. The rich win and the poor go to jail.

  • No Money No Justice! Unless they are tax payer funds. This will pale into insignificance with the new amendment to the Constitution. Every crooked cadre will be manipulating the situation for personal or political gain.

  • What a privilege to have an insider view of this trial – thank you to Kevin and DM. And surely, surely, Mike Hellens has done enough to stir the Johannesburg Bar Council into action? Its Code of Ethics must mean something?

  • Losing so many trial days on “technical difficulties” beggars belief, and having 11 years of sweat and hard work shredded by a compromised trial must be disheartening in the extreme.

    Surely a law can be constructed that encapsulates what common sense dictates, namely that a defendant’s ‘Stalingrad Strategy’ is in essence an admission of guilt.

  • Advocates like this Hellens who utilise the so-called Stalingrad Defence should be debarred. It is truly a despicable strategy that no reputable advocate would use, and in fact is proof of guilt.

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