CONSERVATIONIST VS DAVID MABUZA
Fearful witness gives explosive testimony against former deputy president Mabuza
The last week of the fifth session of case number 34502/2010, the long-running civil trial that has pitted conservationist Fred Daniel against former Deputy President David Mabuza, was marked by testimony that included allegations of political interference, fears of assassination and details of endemic corruption at the Mpumalanga Tourism and Parks Agency. Oh yes, and another witness gave testimony on an alleged framing attempt. So what does the sixth session hold?
‘I think I had to discuss this matter with my advocate, M’Lord,” Bushang Jacques Modipane testified, “because in Mpumalanga during Mabuza’s tenure from 2009, many people in the ANC… were assassinated, and I have reason to be pessimistic about my future – I may be targeted.”
It was 11.10am on 8 June 2023, and the Pretoria High Court had just resumed after an hour’s adjournment. Having run for more than 150 court days and now nearing the end of its fifth session, the matter of case number 34502/2010 was no stranger to such procedural delays – in fact, at the close of the fourth session in September 2022, Judge Cassim Sardiwalla had registered his “disgust” at the defence’s stalling tactics – but this adjournment was different.
The previous night at around six, it turned out, Modipane had answered a call from the man who succeeded him as CEO of the Mpumalanga Tourism and Parks Agency (MTPA), Boy Johannes Nobunga. According to Modipane, Nobunga had attempted to persuade him not to take the stand. Advocate Jacques Joubert, acting for the plaintiffs, had interpreted this as an attempt at “interference with the evidence” and had therefore requested the adjournment to discuss the issue with his witness.
“Mr BJ Nobunga was coming from the ANC,” Modipane explained at around 11.05am, soon after the hearing resumed. “I worked with him in the ANC… and we were together at a later stage.”
After adding that he was surprised by the call, because Nobunga had effectively cut off all contact with him from around 2016, Modipane got to his point – and if there was a sharp edge to his point, it could have been summarised in the identity of the man who was suing the Mpumalanga government for R1-billion, the conservationist and whistle-blower Fred Daniel.
“[Nobunga] then said that, ‘You are going to give evidence in support of Mr Fred Daniel’,” Modipane testified. “And I said, ‘Yes I have been subpoenaed.’ He said, ‘You must be very careful, you cannot work with Fred Daniel, he is not a reliable guy…’ I said, ‘No, no, no, you are making a terrible mistake, I am not going to work with Mr Fred Daniel, I am going to give evidence in court about anything they want to ask me, and if I know something I will tell them what I know.’ ”
By Daily Maverick’s reckoning, given that we had dedicated more than a dozen features to the case, the testimony was already remarkable – never before in case number 34502/2010, which by this stage (including the aborted case management sessions) had run for almost half as long as the Zondo Commission, had a witness been so candid about a current attempt to defeat the ends of justice.
Read more in Daily Maverick: Fred Daniel vs outgoing Deputy President: Senior counsel, NPA prosecutor named in ‘framing’ allegations
But Modipane, it transpired, was only warming up.
“[Nobunga] then started saying to me that we must not give evidence against the leaders of the ANC,” he continued at 11.07am, “because we are jeopardising the ANC. I said, ‘No, no, if I have to give evidence against the criminal behaviour, I do not care whether it is the leaders of the ANC or not, I am going to give that evidence, and for your information, I do not hold a brief for Mr Fred Daniel, and also I do not hold a brief for Mr Mabuza.’ ”
So there it was: Modipane’s first reference to David Dabede Mabuza – the premier of Mpumalanga from 2009 until 2018; and the deputy president of South Africa from 2018 until March 2023 – who, although he did not appear as either a witness or a defendant in case number 34502/20210, was nonetheless holding a senior counsel on retainer.
“To tell the honest fact,” Modipane offered, “I am very angry with Mabuza because he placed my family into a crisis for nine years now, almost 10 years I am not earning a living because of Mabuza.”
As Modipane had already informed the court, his CV included positions as a member of the first executive council in charge of Mpumalanga’s public finances, a stint as the MEC for safety and security and another stint as the MEC for finance, as well as six years as CEO of the Provincial House of Traditional Leaders before taking over at the MTPA in September 2012.
By referring to the fact that he had not been able to find a position in the public sector since 2014, when his contract with the MTPA was “terminated”, Modipane was effectively stating under oath that the former deputy president had been waging a personal vendetta against him.
More than that, as would be clear from his “assassination” remark at 11.10am, he was also stating under oath that he feared for his life.
Aside from the call the previous evening from Nobunga, Modipane testified that he had received another strange call before six that same morning from a person “who is close” to Mabuza. The witness declined to give the name of this man, but stated that he wanted to know if Modipane was at home and whether he could come over for a “visit”.
Requisitioned documents & fictitious debts
So what was it that former Deputy President Mabuza, by the authority of the court transcripts, did not want Modipane to place on the record?
As an opener to the evidence proper, at around 11.15am, Joubert asked Modipane whether he was aware that his predecessor at the MTPA, Charles Ndabeni, had attempted to “settle” the civil claim that Daniel had brought against the Mpumalanga government back in July 2010.
The significance of this question was clear – as Ndabeni himself had testified in an earlier session of the trial, and as Daily Maverick reported in the first part of our “Dead Matter” series, an internal investigation was concluded in 2011 that confirmed an unlawful and fraudulent campaign against Daniel by senior MTPA staff members with alleged links to Mabuza. Ndabeni, convinced of the truth of these findings, had attempted to compensate Daniel for his damages and bring the perpetrators to book, but instead he had been “compelled” to resign as chief executive of the MTPA in August 2011, well before the end of his five-year contract.
Although Modipane had been denied the benefit of a “handover report” from Ndabeni, he told the court, the MTPA’s executive management had fully briefed him about the attempt to settle with Daniel.
Next, after referring to a proposed “cooperation and development agreement” between Daniel’s former private nature reserve, Nkomazi Wilderness, and the MTPA, Joubert drew the court’s attention to the so-called “Great Nkomazi River Concept Plan” – or, technically, exhibit D-383 – and asked for Modipane’s comment.
“M’Lord,” Modipane testified, “this document… is an integrated concept document, and it falls within the vision of the government of South Africa. It is a document which emphasises that there was going to be a partnership between government and the private sector.”
The witness then went on to state that the plan included the creation of a transfrontier park that would link Nkomazi Wilderness with local provincial reserves and protected land in Swaziland, and that – “if it was implemented” – it would have been a “game-changer” for employment creation, tourism development and nature conservation in Mpumalanga.
“It was Mr Daniel’s evidence,” Joubert put it to Modipane, “that the idea was, if a cooperation and development agreement had been entered into, that this project, or this concept plan, would have been implemented. Do you confirm that?”
The witness responded: “I confirm it, and just one sentence on that. Had this document been supported by government, it would have changed the profile of tourism in the province and also the profile of nature conservation, because it was going to help create jobs. We actually used this document to invite investors to participate.”
Joubert: “And in your experience, what impact would that have also had on the damages claim?”
Modipane: “I think, had we managed to agree, it would have settled those damages. I am very optimistic it would have done that.”
Joubert did not ask Modipane for his opinion on why the agreement was never signed, but he did remind the court that Daniel had already provided evidence that the concept plan was partly an attempt to mitigate the damages.
Was this, then, the evidence that Mabuza (allegedly) did not want the Pretoria High Court to hear?
Perhaps, but there was something else.
About halfway through his testimony, Modipane stated that his own attempt at settling the damages claim had been stifled from early on in his tenure. This was due to the fact, he testified, that he had been informed by his executive management “that all the documents pertaining to that matter [were] no longer with the MTPA [but had] been removed to the premier’s office”.
The testimony was in line with what Daily Maverick reported in August 2022, when – in the context of a series of criminal case dockets that had “gone missing” – we cited page 198 of the MTPA’s 2015/2016 annual report, which confirmed that Mabuza’s former office had taken over the case, although “liability for legal fees” had remained with the agency.
By Modipane’s evidence, therefore, the documents had been in Mabuza’s possession for at least two years before the MTPA admitted as much. And, while this particular detail was not explicitly placed on the court record, what was explicit was Modipane’s memory of his time at the MTPA.
“Did you have any say afterwards in any attempt to try and settle this case?” asked Joubert.
“No,” Modipane responded, “I did not have any say about this case, and I never dealt with this case, suffice to indicate briefly that my stay at the MTPA was a living hell. I could not do my job. When I arrived there… corruption was rife… the debt, I was told when I arrived there, M’Lord, that it was R110-million, and it was there in the documentation, it was shown to me, that they were owing R110-million.”
Once again, it appeared, Modipane was providing evidence that went above and beyond what was required of him.
“Without going into detail,” he added, “I must just indicate that coming from a Treasury background, I understand the framework very well, and I understand how corruption comes about. I then started coming up with the process to test whether the debt was genuine, because in government they create what we call ‘fictitious creditors’ in order to steal from government.”
Modipane told the court that he had appointed a law firm and auditors to look into the “fictitious debt” – and that what was revealed was that the MPTA at the time owed no more than R18-million, “to Telkom, to Vodacom, and to companies which were feeding animals and so on.”
He testified: “So the whole [R92-million], it was a fictitious debt in order to steal the money, and they have stolen a lot of money at the MTPA.”
Case closure & Stalingrad rulings
After the fifth session of the trial ended, once all the transcripts were added to the court
record, Daily Maverick sent a list of questions to Nobunga, who had left the MTPA at the end of his five-year term (in 2022) and was now serving as the chairperson of the Railway Safety Regulator. What we wanted to know was whether Nobunga had reason to challenge the testimony of Modipane, specifically regarding the contents of the phone call.
But Nobunga declined to answer our questions, which meant that, for the moment, the facts were uncontested.
In their cross-examination of Modipane, which began on Friday, 9 June 2023, neither advocate Dawie Joubert SC – acting for the MTPA – nor advocate Mike Hellens SC – acting for Mabuza in his personal capacity – addressed the opening part of the witness’s testimony.
In other words, it was not disputed that Modipane received a call from Nobunga and another person “who is close” to Mabuza, and that this was effectively an attempt to “interfere with the evidence”.
Neither was it disputed, as per Modipane’s testimony, that “during Mabuza’s tenure from 2009, many people in the ANC… were assassinated” and that this was a very valid reason for the witness to fear for his safety.
Rather, (Dawie) Joubert and Hellens attempted to attack Modipane’s credibility.
To this end, at around 10.30am, they introduced a report to the court record that had not yet been “discovered”. The effect of the introduction of this report at the final hour was that Judge Sardiwalla had to stand the court down until Monday, 12 June, so that Modipane and the plaintiffs could familiarise themselves with its contents.
In essence, the implicit allegation contained in the report was that Modipane, in December 2013, had updated his superiors in the provincial government on the status of the litigation between Daniel and the MTPA. If so, this would have nullified the witness’s testimony that he had “never dealt with the case”.
Modipane, for his part, testified that he did not personally write the report, although he did concede that it would not have been forwarded to the MTPA’s stakeholder authority had it not contained his signature. It was simply a matter, he stated, of “moving” the document up the chain.
“That history that is being mentioned there,” he testified, “I was not part of it… I agreed [to sign] because I had no reason not to believe those people, what they were writing, but that does not mean I agree with it entirely.”
Interjecting for the plaintiffs, (Jacques) Joubert pointed out to the court the identity of the report’s actual author – and the defendants, in return, conceded that they would consider calling him as a witness.
The remainder of the cross-examination, which lasted less than an hour, consisted of further attempts to impugn Modipane’s credibility – including an effort to get the witness to admit that he had been suspended from the MTPA for an incident that involved the theft of rhino horn.
“No,” Modipane testified, “the chairperson [of the MTPA] tried to suspend me, and then it hit back on her and as a result she was removed.”
Finally, just before the adjournment for lunch, when the defendants had finished their cross-examination, (Jacques) Joubert delivered the line that had been 13 years in the making.
“After the interference with [Modipane’s] evidence,” Daniel’s advocate informed the court, “we have decided we have got one more witness we want to call and he will be ready to testify at 14h00, Mr Andre Pienaar. So, M’Lord, then we will be closing our case.”
It was a seminal moment, rendered all the more profound by the fact that the defence’s alleged Stalingrad tactics – which Daily Maverick first addressed in August 2021 – had clearly not succeeded. From the initial lodging of the case in July 2010, Daniel and his legal team had driven case number 34502/2010 to the point where thousands of pages of prima facie and substantive evidence had now been tested in the Pretoria High Court.
It was perhaps appropriate, then, that Pienaar was the plaintiffs’ final witness. As readers of Daily Maverick may recall, it was this man – a Hoedspruit-based game dealer and wildlife capture expert – who had deposed an affidavit in February 2023 that implicated (Dawie) Joubert SC in an alleged attempt to “frame” Daniel. The affidavit, we reported, was backed up by WhatsApp messages that appeared to corroborate Pienaar’s version of events.
These same WhatsApp messages were the central feature of Pienaar’s evidence-in-chief, which was that, in return for providing testimony that he had illegally delivered crocodiles and hippos to Daniel’s nature reserve, a truck that had been confiscated by the provincial authorities would be returned to him.
In the cross-examination, conducted by Hellens, the defendants once again attempted to impugn the credibility of the witness, arguing that it was not the intention to frame Daniel, but simply to establish the “facts”.
What Hellens declined to address, however, was the substance of the WhatsApp messages themselves. By any interpretation of these texts, it was clear that the defendants had planned to use an unrelated criminal matter – regarding which no charges against Pienaar had formally been laid – to compel testimony in a civil trial.
And there was an even deeper irony here, which had everything to do with the Legal Practice Council (LPC), South Africa’s oversight body for dealing with malpractice by members of the legal fraternity. At the beginning of the fifth session, in May 2023, Hellens and (Dawie) Joubert had taken up almost a week of the court’s time by arguing that (Jacques) Joubert was not registered with the LPC – and that the entire trial should therefore be declared a nullity.
On 8 May, referring to the evidence of Marli Meyer, an official of the LPC who had been called to the stand by the defendants, Judge Sardiwalla handed down his judgment on the matter, ruling that (Jacques) Joubert was indeed registered and that there were “no prohibitions to continue in his practice”. The application, accordingly, was dismissed with costs.
While this may have been yet another in a long series of rulings and court orders against the defendants, it appeared that they did not take it to heart – according to the Stalingrad playbook, the longer they could stretch the trial out (with the South African taxpayer forking out for their fees), the more likely it would be that Daniel would run out of cash and steam.
Which, again, was why it was so remarkable that the plaintiffs announced the closure of their case on 12 June 2023. And just two days later, on Wednesday, 14 June, Judge Sardiwalla announced that the sixth session of the trial would commence on 6 November for two weeks, with a further two weeks set down for December.
Would the defendants manage to get through their own witness list in 20 court days?
The judge, for his part, said that he wanted the trial closed by the end of the year. Daniel, although he was showing no signs of flagging, would more than likely have agreed. DM