The judge who exited the stage

“Did Fred [Daniel] let you know that Tembeka Ngcukaitobi has joined [his] team?” asked our source. “He says it’s the most important land case in South Africa.”

It was late December 2023, the country was on vacation, and the tip-off had arrived in the wake of deep confusion around the status of case number 34502/2010 of the Pretoria High Court.

As Daily Maverick had reported at the beginning of the month, for reasons that had to do with an alleged medical condition, President Cyril Ramaphosa had discharged the trial judge from service. For us, the all-important factor was the timing: it had happened just after the fifth session, when the plaintiffs had presented their final witnesses and closed their case.

Our reporting on Judge Cassim Sardiwalla’s discharge had drawn the ire of the Department of Justice and Correctional Services, which had accused us — in no uncertain terms — of “disinformation”. The fact was, however, that with the exit of Judge Sardiwalla, there was a very real chance the trial would begin de novo.

In other words, after more than 13 years of litigation, comprising tens of thousands of pages of correspondence, countless aborted case management sessions and upwards of 180 court days, the government defendants were now insisting that the self-funded plaintiffs — who had so far spent around R57-million on the case — needed to do it all again.

As anyone familiar with case number 34502/2010 would have known, the prodigious evidence that the plaintiffs’ witnesses had submitted under cross-examination to the Pretoria high court had dealt, in the main, with the so-called “land claims scam” — a many-tentacled organised crime operation, allegedly overseen by former deputy president David Mabuza, that had cynically abused the Restitution of Land Rights Act to enrich an unlikely cabal of ANC party loyalists and white Afrikaans middlemen.

The overall cost of the scam to the Mpumalanga economy, according to a 2015 report compiled by retired judge Willem Heath, was R35-billion. But that measurement, as devastating as it was to the province’s unemployment figures and tourism heritage, did not take into account the much more subtle damage to the South African Constitution. Because, if apartheid had been about anything, it had been about the removal of communities, clans and entire tribes from their ancestral lands — and here, section 25 of the Constitution, just like its legislative offspring the Restitution of Land Rights Act, had once been counted with the most enlightened land reform laws in the world.

Daniel’s consistent allegation, from when he had first blown the whistle on the land claims scam in the spring of 2004, was that the South African government — and by implication, the ruling ANC — had been stealing the land from the very people to whom it was supposed to be given back.

As Daily Maverick was intensely aware, then, if it was indeed true that Ngcukaitobi had joined forces with Daniel, his presence was likely to be a game-changer.

At the age of 47, as the son of a domestic worker from the former Bantustan of Transkei, Ngcukaitobi had already achieved what most local advocates could only dream of achieving in a lifetime. He had been an advocate of the Johannesburg Bar since the age of 33, a “silk” (senior counsel) since 43, and had served as an acting judge in the Labour Court, the Land Claims Court and the High Court of South Africa.

In 2017, on behalf of the Economic Freedom Fighters, he had argued successfully before the Constitutional Court that the speaker of the National Assembly was obliged to institute impeachment proceedings against President Jacob Zuma for his role in the Nkandla scandal.

In October 2019, he had been hired by President Cyril Ramaphosa’s new government, alongside legendary silks Geoff Budlender, Ngwako Maenetje and Wim Trengove, to assist with the investigation and prosecution of State Capture crimes.

Also, as far as his abiding interest in land rights went, he had published a pair of deeply enlightening and highly authoritative books: The Land Is Ours: Black Lawyers and the Birth of Constitutionalism in South Africa (2018) and Land Matters: South Africa’s Failed Land Reforms and the Road Ahead (2021).

The new advocate on stage

The concrete fact of Ngcukaitobi’s presence on the plaintiffs’ team would be confirmed on 22 January 2024, in a letter from the plaintiffs’ attorneys to Deputy Judge President Aubrey Ledwaba of the Gauteng Division.

In the letter, copied to Judge President Dunstan Mlambo and Nelson Govender, the state attorney assigned to case number 34502/2010, Daniel’s lawyers informed the judicial leadership that they were disputing — based on the plaintiffs’ constitutional rights to a fair trial — the de novo request of the defendants.

“The plaintiffs were advised on 6 November 2023 that Sardiwalla J could not finalise the trial,” the letter continued — referring to the very date, without overtly stating it, that the sixth session was scheduled to begin.

Accepting that Sardiwalla would no longer be presiding, the plaintiffs proposed the names of three retired judges — “Nugent J, Blieden J, or Griesel J” — who could all be approached at the discretion of Judge President Mlambo.

Then, in the sixth paragraph, the letter delivered the news: “The 1st to 7th Plaintiffs have now appointed senior counsel, Advocate T N Ngcukaitobi SC, to act on their behalf.”

Ngcukaitobi, since he was already on brief, could obviously not engage with Daily Maverick on the matter. But we did know that in November 2015, as an acting judge of the Land Claims Court, he had ruled against the Land Claims Commission and the office of the Mpumalanga premier — occupied at the time by one DD Mabuza — in a separate matter that involved the Ndwandwa Community Trust.

The essence of the judgment was that the indigenous Ndwandwa community, which held a valid ancestral claim to a large parcel of land in the Badplaas region, had been unlawfully represented in both name and stature by the Ndwandwa Community Trust. As Ngcukaitobi ruled, the R8.8-million that these false trustees had taken as a “development grant” from the Mpumalanga government should rightfully have been awarded to the original claimants.

It would not have been lost on Ngcukaitobi, we assumed, that this “hijacked” Ndwandwa Community Trust was the very same entity Daily Maverick would follow in early 2022, along a trail of documentary evidence that led through the second and third stages of the so-called “land claims scam” all the way to Mabuza’s wife.

The source of the documentation that mapped the unmistakable trail was no more and no less than Daniel’s personal litigation files — which, as we further assumed, would probably come in handy in the event that Ngcukaitobi ever needed to present the evidence to the High Court.

But, again, Daniel had closed his case in June 2023, after he was satisfied that the testimony of 17 witnesses — including his own — had fully presented his argument. The involvement of Mabuza’s wife, as far as the extant court record was concerned, would remain confined to paragraph 52 of Richard Spoor’s witness statement, wherein the Mpumalanga-based land rights attorney had testified to the following:

“To the best of my recall substantial sale commissions were paid to Premier DD Mabuza’s wife who was a Pam Golding estate agent.”

The question, therefore, was did the government defendants really want Ngcukaitobi to come with new evidence like the above in a de novo open court trial?

There were, of course, some awkward external factors for the government defendants to consider. For instance, the revelation — published by Daily Maverick in August 2022 — that criminal case dockets relating to the Ndwandwa Community Trust had mysteriously “gone missing” from the Badplaas police station.

By Daily Maverick’s reckoning, given that the essence of their documented “Stalingrad strategy” was to starve the plaintiffs of resources, the defendants were still betting that Daniel would run out of funds. But Ngcukaitobi, for his part, did not appear to have his eye on the conservationist’s last remaining coin.

As the letter of 22 January 2024 stated, Ngcukaitobi, in consultation with Daniel’s full legal team, had already prepared “a roadmap to expedite the finalisation of the special trial”.

This included, according to the seventh paragraph, a further judicial case management meeting where the agenda would address the “final witness list of the defendants” and “witness summaries of the defendants to curtail unnecessary cross-examination on issues that are not in dispute”.

Problematically for the government defendants, Ngcukaitobi was going directly at their soft spots — the full court record for case number 34502/2010, as well as Daily Maverick’s own reporting, clearly demonstrated their repeated refusal to submit to either of these requests.

How the stage is currently set

On 23 January 2024, the day after Daniel’s attorneys sent word of Ngcukaitobi’s appointment to the judicial leadership, News24 published a piece under the title, “As Namibian courts clash over arrest of Gupta advocates, SA legal body mulls misconduct probe”.

The central antagonists of the piece were Mike Hellens SC and Dawie Joubert SC, who also happened to be senior counsel for the government defendants in case number 34502/2010.

“After high-profile advocates Mike Hellens and Dawie Joubert failed to successfully appeal their immigration violation convictions in Namibia’s Supreme Court,” the report noted, “the Johannesburg Bar says it will consider whether they should face a professional misconduct probe.”

Coincidentally, that very same morning — 23 January 2024 — Daily Maverick had sent a 26-page questionnaire to the official spokespeople of President Ramaphosa and his justice minister, Ronald Lamola.

The gist of the questionnaire had to do with the transcript of the all-important case management meeting of 4 September 2023, which had unexpectedly come into Daily Maverick’s possession — and which suggested, based on the evidence, that not only had Hellens and Joubert arrived at that initial announcement of Sardiwalla’s alleged medical condition prepared, but also that the judicial leadership may have been sympathetic to their line.

Put simply, we wanted to know whether the presidency and the justice ministry agreed with the view of the Gauteng judicial leadership, repeated at a press conference in Sun City on 5 December 2023, that Judge Sardiwalla’s alleged condition was the sole and primary cause of the consistent delays to case number 34502/2010.

On 25 January 2024, after a follow-up message from Daily Maverick, Lamola’s spokesperson confirmed receipt of the questionnaire — a response would be forthcoming, he promised, by the deadline of 6 February.

Also in the first week of February, as Daily Maverick has learned, the judicial leadership will be deciding on a new judge for the case. DM