Justice for the departed — Fred Daniel defeats Mabuza, more than 20 years late

“Mr Mabuza had already showed that he could bring down the power of the mob to thwart Mr Daniel in his perfectly lawful vision to develop a game reserve in the Badplaas area.”

By Daily Maverick’s reckoning, if there is any sentence that captures the fundamental inequity of the showdown between conservationist Fred Daniel and former deputy president David Mabuza, it’s this one. Published on page 82 of Judge Neil Tuchten’s 181-page ruling, as delivered to the North Gauteng Division of the High Court on 30 September, the sentence gets to the heart of one of the most remarkable confrontations of the post-apartheid era — a faceoff between a private citizen and a powerful politician that endured for more than two decades.

The sentence appears in paragraph 218 of the judgment, under the section titled “Conclusions on the land claims racket evidence”. Across the 12 paragraphs that make up the section, Mabuza’s name features almost two dozen times. In essence, although it is an astonishing fact to state, Judge Tuchten has done what no other officer of the law has dared — not only has he ruled that there was indeed a land claims scam in Mpumalanga, he has ruled that Mabuza was one of its architects.

For South Africa, although the former deputy president died in July, the moment is nothing short of historic. Back in 2006, after all, the scam was cited in then President Thabo Mbeki’s State of the Nation Address — the scandal, it was declared, proved that the “willing buyer, willing seller” principle of land reform was flawed. To speed up the process, Mbeki noted, the government would begin to consider “expropriation” as a more effective means of reform.

As journalist Rehana Rossouw pointed out in her seminal Predator Politics: Mabuza, Fred Daniel and the Great Land Scam, published in October 2020, just about every neighbour of Daniel’s in the tight-knit Badplaas farming community blamed him for the threat.

Still, asked by Daily Maverick in 2022 to comment on his role in Mbeki’s sabre-rattling, Daniel was dismissive.

“It’s bullshit,” he told us, “they got it all wrong. The real problem was in the government — and it still is.”

Read more: Grand corruption — David Mabuza, Fred Daniel and the new trial judge

Judge Tuchten’s ruling has vindicated Daniel. The role of the government in gutting section 25 of the Constitution, which makes provisions for addressing historical imbalances in land ownership, is no longer up for debate.

‘This was no single act by a single state actor,” the judgment declares on page 162. “It was a concerted campaign over several years by members of the executive in the province, in league with high officials in at least two organs of state which, by the public powers vested in them by law, were in a unique position to intimidate Mr Daniel and frustrate the realisation of his dream. They enlisted in their scheme a criminal mob and instructed the SA Police [Service] to stand aside while the mob did its work.”

As Daily Maverick has attempted to show in the more than 20 long-form articles that we have devoted to the case in the last five years — a trove of journalism that is collected in a dedicated standalone site — there are very few whistleblowers in South Africa who have faced the same sustained heat, or exhibited the same resilience, as Daniel. Aided by his advocate and friend Jacques Joubert, he has demonstrated a level of courage and nous that has often been uncanny.

A standout example occurred in the winter of 2022, when Daniel approached us with evidence of obstruction of justice at the highest levels. In March of that year, Daily Maverick had published an investigative feature that tracked a pivotal aspect of the scam, from a hijacked community trust to fake letters of credit and the likely involvement of Pam Golding Properties. The endpoint of our reporting was the alleged complicity of Mabuza’s wife, Nonhlanhla Patience Mnisi.

On the back of our exposé, we learnt, an investigation had been launched by the head of the Serious Corruption Offences unit of the Hawks. But the investigation ran out of steam, as Daniel and Joubert demonstrated to us, when it was discovered that three criminal dockets — which covered the same allegations as those highlighted in our original piece — had inexplicably “been emptied” or “gone missing”. The high-ranking officers on the case, a general and two colonels, had taken the cue and stood down.

Perhaps lesser men than Daniel and Joubert would have taken the cue as well. Instead, as is their nature, the duo doubled down.

Failure of the criminal justice system

Through the spring and early summer of 2022, inspired by the missing case dockets, Daniel and Joubert worked closely with the Organisation Undoing Tax Abuse (Outa) on a criminal complaint that reincorporated the allegations. On 5 December 2022, the 41-page complaint was lodged with the Investigating Directorate of the National Prosecuting Authority (NPA). Alongside the timing — less than two weeks before the ANC elective conference at Nasrec — Mabuza’s position as the lead suspect drew the attention of the nation.

Significantly, Outa had chosen to draft the complaint with specific reference to the Prevention of Organised Crime Act of 1988, an underutilised piece of legislation that had been passed to deal with racketeering. The evidence against Mabuza and his 14 assumed accomplices was drawn almost entirely from Daniel’s civil action in the North Gauteng Division of the High Court, with the web of interlinked allegations running the gamut from defeating the ends of justice to theft, fraud, perjury, contempt of court, intimidation and extortion.

But, as it had done repeatedly since 2002, the criminal justice system would pretend that the land claims racket did not exist. Despite half-hearted responses to Daily Maverick that it was following up, the NPA never converted Outa’s complaint into a charge sheet.

And so Judge Tuchten, aside from vindicating Daniel, has now brought into the realm of fact what those familiar with the case have always suspected — justice, if it ever came, would only arrive once Mabuza no longer had his hands on the levers of power.

Read more: Fearful witness gives explosive testimony against former deputy president Mabuza

In his award of damages to Daniel of R306-million, a sum that does not include interest or the significant costs of running the trial — which likewise, as per the ruling, must be paid by the state defendants — Judge Tuchten has, on the face of it, placed the burden for the land claims scam on the South African taxpayer. Given that a 2015 report by Willem Heath estimated the cost of the criminal enterprise to the Mpumalanga economy at R35-billion, this may seem like a pyrrhic victory. But knowing Daniel, as Daily Maverick certainly does, the alternative view is that the money is now in a way more productive pair of hands than the government’s.

“This ruling cannot bring back the world-class conservation project that was destroyed,” notes Bool Smuts, an expert witness and adviser to the litigants, in a moving tribute to Daniel and Joubert. “[It cannot bring back] the wildlife killed or the habitats lost.”

What it can bring, of course — as Smuts will know better than anyone — is a new world-class conservation project; it can bring wildlife reinstated and habitats restored.

That, by Daily Maverick’s reading, had always been Daniel’s dream in the event that damages were awarded. Last we checked, it was a dream that hadn’t been snuffed out. DM