I Cost orders

‘The conduct of this case is absolutely disgusting, to say the least.”

The background context to this statement of Judge Cassim Sardiwalla, delivered to counsel in the Pretoria High Court on 31 August 2022, was abundantly clear.

Equally clear, as he indicated, was that if he could have used a more descriptive phrase than “absolutely disgusting”, he almost certainly would have. 

On the judge’s directive, handed down on 24 August 2022, the parties in case number 35402/2010 were meant to have taken the previous week — without his presence or oversight — to “define the issues and limit the trial duration”. Unfortunately, the fourth session of the trial, which had initially been set down for 25 July but had only commenced on 8 August, was going entirely according to script.

And the script, which counsel for the South African government had effectively been writing since July 2010 – when conservationist Fred Daniel first lodged his R1-billion civil claim – could once again be summed up in two words: Stalingrad Defence.

To be more specific, advocate Dawie Joubert (acting for the Mpumalanga Tourism and Parks Agency and the other government defendants) and advocate Mike Hellens (acting for Deputy President David Mabuza in his personal capacity), were still pulling every trick in the book to ensure that the plaintiffs ran out of steam.

As Daily Maverick reported in late July 2022, just days before the fourth session of the trial was due to begin, Daniel’s legal team had already furnished the state attorney with compelling evidence that the government defendants had time and again “put sand in the gearbox of the administration of justice”.

The history, Daniel must have guessed, was important — mainly because it was likely to determine the course of events to come.

In that pivotal letter to the state attorney, Daniel had therefore instructed his lawyers to refer to an earlier judicial directive, handed down in July 2020, to “curtail the ambit of the trial” by reducing the witness lists. As noted in the court record and repeated in the letter, the very next day the defendants had done the opposite — they had “expanded” their witness list. Not only that, Daniel’s attorneys added, but they had threatened that if the plaintiffs removed witnesses, these same witnesses would be added to their list.

It turned out, bizarrely, that this had been more than just a threat. According to Daniel’s attorneys — who were referring, again, to documents in the court record — the defendants had then for no rhyme or reason added Charles Ndabeni and Richard Spoor to their list of witnesses.

As readers of Daily Maverick may remember, Ndabeni had just signed a pivotal affidavit on Daniel’s behalf, while Spoor, one of the country’s foremost land rights experts, would later give testimony so explosive that it would all but blow Mabuza’s case apart.

To return, then, to 31 August 2022. The source of the judge’s fury was clearly that counsel for the defence had ignored judicial directives to “limit the duration of the trial” before. And the directive handed down on 24 August could not have been stated in more transparent terms.

“I am now stopping the proceedings for the parties to within seven days reach settlement on the entire matter,” Judge Sardiwalla had ordered. “Alternatively, on the better part of the common cause issues. And I would like to see written agreements between yourselves. And if there is no agreement, I want motivation as to why parties refuse to agree or want the Court to decide.” 

Minutes before handing down this directive, Sardiwalla had referred to reports in the trial bundle that were “common cause”. Even though the contents of these reports were not in dispute, he’d stated, counsel had been “wasting the Court’s time” by “continuous, protracted cross-examination.” And while he had been careful not to name the offending parties, it was inherent that his barbs had been aimed at counsel for the defence.

“[There] will be cost orders if there is no cooperation,” the judge had continued. “So I am directing both parties to narrow issues and be cooperative. And I am not going to interfere with the process. You do it between yourselves and your clients.”

II Underlying agendas

A week later, as readers will no doubt have guessed, there was no settlement. Neither was there any agreement on the common cause issues. So, after affirming his “disgust” yet again, Judge Sardiwalla provided some insight into what was going through his mind. 

“I get the sense there are underlying agendas to make sure this case is dragged out as long as it can [be],” he stated.

If ever there was a definition of the Stalingrad Defence, this was it. More importantly, it would have been lost on nobody in the virtual courtroom that Sardiwalla’s reference to “underlying agendas” had everything to do with Deputy President Mabuza.

As Daily Maverick reported in September 2021, the Pretoria High Court had by now heard the damning testimony — backed up by documentary evidence — that linked Mabuza to the largest land claims fraud in post-apartheid history. 

In this sense, it was no surprise that the judge president was taking a personal interest in the matter.

“The JP has expressed his anger,” Sardiwalla continued, “not his disappointment.”

As always, Sardiwalla was careful to maintain his objectivity — he did not say who the judge president was angry at. But given that counsel for the defence had declined to arrive in Sardiwalla’s courtroom with a report on progress, as directed on 24 August, the proverbial writing was on the wall.

Daniel’s advocate, on the other hand, had prepared a report.

Submitted on the afternoon of 30 August 2022, the day before the parties were due back in the virtual courtroom, it ran to 90 paragraphs over 21 pages. At the top, advocate Jacques Joubert pointed Judge Sardiwalla to the “golden thread” of events that allegedly proved the “disgraceful and unprofessional” conduct of counsel for the defence.

Joubert’s core argument was that Hellens and (Dawie) Joubert were now in clear breach of the Judge President’s Practice Directive 2 of 2019, specifically the directives to “act professionally in expediting the matter towards trial and adjudication” and to “address the problems which cause delays in the finalisation of cases”.

Over the course of the preceding week, as revealed in the court transcripts, counsel for the defence had given the distinct impression that they were intent on doing the opposite.

On 25 August, in order to comply with Sardiwalla’s order, (Jacques) Joubert sent his opposing counsel a summary of the plaintiffs’ case. Among other things, the summary stated that the defendants had breached their “statutory duties… to honestly administer the Restitution of Land Rights Act and Mpumalanga Nature Conservation Act No. 10 of 1998”.

After contending that the plaintiffs were as a result “driven off their land” and forced to sell their conservation project “at a fraction of the value”, Joubert had then laid out what he termed the “improper ulterior motives” of the defendants. 

These motives, he stated in the summary, were to profit from “fraudulent transactions related to land claims”, to allow “illegal barrier fences to shrink the [conservation project] to benefit cattle farmers” and to “[sell] animals that should have been protected to hunters”.

But despite this concise summary, as Joubert noted in his report to the judge, counsel for the defence had called a premature end to the meeting of 26 August — “after accusing plaintiffs’ counsel of not understanding [the] plaintiffs’ case”. 

That same afternoon, given that no progress had been made at the obligatory meeting, Joubert had sent a list of questions to his opposing counsel. He reported to Sardiwalla that these questions were aimed at ascertaining, first, the estimated duration of the cross-examination of Daniel — who, after four days of testimony, was still supposed to be on the stand — and second, the estimated duration of the testimonies of the defendants’ own witnesses.

As an obvious way to limit the trial’s duration, Joubert had also asked the defendants to provide witness summaries of the material facts in their case.

“A few further questions were asked on key issues in the hope that the issues could be resolved,” Joubert added in his report, “alternatively that defendants will state their version on those issues.” 

But, as Joubert alleged, there had been no “meaningful response” to these questions. Instead, there had been a belated “angry letter” from the state attorney, which failed “to make any contribution to limit the disputes in regard to the facts.”

Indeed, by Daily Maverick’s reading, the letter from the state attorney was more of the same — not only had the government’s legal team declined to offer a summary of their case, they had drilled down into a morass of technicalities, asserting at last that they “denied” the “alleged wrongful actions” and “improper ulterior motives” of their clients. 

Of course, if counsel for the defence had prepared a written report for Judge Sardiwalla, their bare denials in the letter may have held more weight. But, again, they arrived on 31 August empty-handed. 

As for Joubert’s report, the remaining paragraphs outlined the long history of obstruction endured by the plaintiffs, stretching back to December 2018, when a previous judge had determined that the trial was ready to proceed and should be concluded within 25 days. 

As readers of this series may remember, that “first and only” session of the trial was supposed to have commenced on 27 July 2020, with an end date of late August the same year. But the bizarre inflation of the defendants’ witness list (as referred to above), as well as a raft of special pleas and a 108-page request for further particulars (served on the eve of the trial), had brought a swift end to such plans.

Joubert’s report, with the backing of the court record, pointed out that many of the delays over the ensuing two years had contravened judicial directives. He was hardly out of line, therefore, to direct the judge to the Constitution.

Section 34, he noted, referred to the right of every South African to “a fair public hearing”. Taken together with his citation of section 173, he seemed to be suggesting (perhaps unwittingly) that the judiciary itself was on trial: 

“The Constitutional Court, Supreme Court of Appeal and High Courts have the inherent power to protect and regulate their own process, and to develop the common law, taking into account the interests of justice.” 

III Smelling victory 

Judge Sardiwalla, for his part, appeared to be well aware of section 173.

“I am not going to allow this matter to run the way you want it to run,” he told Hellens on the afternoon of 31 August.

Still, in the face of the blunt refusal by Hellens, it was difficult to see how he could force the government defendants to provide witness summaries of the material facts in their case. In other words, if counsel for the defence continued to argue the technicalities without attending to the evidence, there was every chance that the “underlying agendas” would prevail.

And to reiterate, as Daily Maverick has reported through the 12 articles (and counting) that we have dedicated to the case, these agendas have all seemed to stem from the same source: the office of the deputy president of South Africa.

On 7 August 2022, the day before the fourth session of the civil trial kicked off, we published a piece under the title, “Revealed: David Mabuza, Fred Daniel and the missing crime dockets”. As noted in the piece, Major-General Kubandran Moodley, head of the Serious Corruption Offences unit of the Hawks, had been inspired by a feature that we had published in March 2022 — linking Mabuza’s wife to the alleged land claims fraud — to oversee a criminal investigation.

Moodley had assigned a pair of senior colonels to the matter, with the promise to Daniel and Joubert that the Hawks were treating it as an urgent priority. But by July 2022, the criminal investigation had fallen flat. The colonels discovered that three prior case dockets with the same or similar charges had “gone missing” — and Moodley, in a WhatsApp message to Daniel, was not ruling out the possibility of senior governmental “interference”.

(Photo: Supplied)

Given that these cases had been deemed fit for trial, with the National Prosecuting Authority inexplicably dropping the charges, the general may have had a point. As for Daniel, he had little doubt that the architect of the cover-up was Mabuza.

For Daily Maverick, then, a discomfiting truth was beginning to emerge — although the testimony heard in the civil trial appeared to align with the allegations in the lost Hawks dockets, the hands of the criminal justice system were (mostly) tied.

So where, in this very serious game, were the pieces likely to drop?

By any assessment of the board, with the Hawks and NPA for the moment on the sidelines, the move was Sardiwalla’s. Since taking hold of the trial, the judge had played an experienced and careful hand; as far as the technicalities were concerned, he had crossed all his “t’s” and dotted his “i’s”. But the time for a ruling was upon him.

On the morning of 2 September 2022, the last day of the fourth session, counsel for the defence arrived in the virtual courtroom with an unmistakable air of victory. They had somehow managed to ascertain that Jacques Joubert’s registration with the Legal Practice Council was not recorded in the system, which meant that Sardiwalla would be compelled to declare a mistrial. Unbeknown to the defendants, however, Joubert had already sorted the matter out — the day before, he had obtained a letter from the Western Cape division of the LPC, confirming that he was indeed registered.

But tellingly, at the same time that this was going on, a furious letter had been sent from the state attorney to the director of the Gauteng division of the LPC, cc’d to Judge President Dunstan Mlambo, Judge Sardiwalla and Daniel’s attorneys. In his latest letter, State Attorney Nelson Govender had requested an “urgent investigation into the conduct and affairs of Mr JF Joubert” on the basis that if he was not registered, “[the] trial is probably vitiated and made a nullity”.

Problem was, of course, that Govender had sent his missive to the wrong provincial division of the LPC. In the event, the only thing that the failed attempt at a mistrial appeared to prove was that Sardiwalla had been entirely correct in his assessment — delivered on 31 August — of a “war between the parties”.

The matter, according to Sardiwalla’s final words on 2 September, would have to be concluded before the end of the year. Although Hellens and (Dawie) Joubert did their best to acquaint the judge with their full diaries, he remained immovable. As everybody in the virtual courtroom knew, case number 35402/2010 had been deemed a “special trial” — which meant that advocates’ prior commitments were irrelevant.

Everybody knew, too, that Hellens and Joubert had skipped an important pre-trial conference in early June 2022. They had offered the excuse via their juniors that they did not “receive timeous notice”, when they had in fact flown to Dubai to represent the Gupta brothers. 

For Judge President Mlambo and Judge Sardiwalla, the issues were therefore clear. In his report-back to Sardiwalla on 31 August, after pointing out the defendants’ consistent breach of judicial directives, (Jacques) Joubert had appealed to the judiciary for a ruling on witness statements.

“There is nothing in the legislation or the Rules of Court to preclude the filing of witness statements or summaries in a trial matter,” he had stated, in an attempt to compel the defendants to engage with the evidence.

He had also appealed for an imposition of time limits, so as to “avoid endless wasted time and costs”. 

The four sessions of the trial, it was implied, with two seniors and two juniors acting for the state, had already cost the South African taxpayer an untold fortune. Joubert had therefore laid out, in precise detail, why and how the defendants “should be able to finalise their evidence within seven days”.

All that remained, along with Joubert’s appeal for “punitive cost order considerations”, was for Sardiwalla to arrive at his ruling for the fifth and final session. By all accounts, the judge would do so in close consultation with the judge president.

As both Sardiwalla and Mlambo were no doubt aware, if Mabuza one day became president without closure of the case, the citizens of South Africa would have some questions for the judiciary. DM/OBP

Read more in Daily Maverick: “Dead Matter (Part One): How political corruption decimated Mpumalanga’s biodiversity”

Read more in Daily Maverick: “Dead Matter (Part Two): The lion, the conservationist and South Africa’s future deputy president”

Read more in Daily Maverick: “Dead Matter (Part Three): David Mabuza, Fred Daniel and the trial of Mpumalanga’s collapse”

Read more in Daily Maverick: “Conservationist vs Deputy President Mabuza: Fred Daniel gets his R1bn day in court after 11 years”

Read more in Daily Maverick: “Conservationist vs David Mabuza: Court hears evidence of massive land claims fraud”

Read more in Daily Maverick: “Claws out for DD ‘The Cat’ Mabuza as his past comes back to haunt him”

Read more in Daily Maverick: “Assassins, elephants and sweating advocates in Barberton Mountain Lands”

Read more in Daily Maverick: “Conservationist vs DD Mabuza: Threats ‘likely to escalate’ as resumption of trial looms”