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

26 May 2024

In mid-May 2024, the ‘grand corruption’ case brought by conservationist Fred Daniel against former deputy president David Mabuza and the Mpumalanga provincial government resumed under a new trial judge. At first, given that Judge Neil Tuchten had ordered that the trial would only resume in January 2025, it appeared that Daniel was on a hiding to nothing. However, a deeper reading of events revealed Judge Tuchten’s firm hand in the face of a serious threat to the judiciary.

Note: The events outlined in this report took place on 13 May. In light of the historical sensitivities surrounding Daily Maverick’s reporting of the case, the decision was made to wait for the official court transcript before proceeding with the compilation of this article.

'The trial is postponed to 20 January 2025 to run between 20 January 2025 and 28 March 2025, and between 14 April 2025 and 20 June 2025 (save for 29 and 30 April and 2 May 2025).”

To the casual observer, these words may have appeared to herald a devastating blow to conservationist Fred Daniel in his marathon civil action against former deputy president David Mabuza and the Mpumalanga provincial government.

Set down in the opening paragraph of a court order dated 13 May 2024, the words were confirmation of yet another inordinate postponement to case number 34502/2010 of the Gauteng Division of the High Court in Pretoria — a matter that had initially been lodged in July 2010; had run through five court sessions over more than 150 days; and had so far cost the plaintiffs in the region of R60-million in fees, with the South African taxpayer footing the (much steeper) legal bill for the government’s team.

As reported by Daily Maverick, the sixth session of the trial had originally been scheduled to commence on 6 November 2023 when the government defendants were due to call their witnesses and present their case.

Daniel, for his part, had closed the plaintiffs’ case on 12 June 2023, after his advocate Jacques Joubert had called the last of 17 witnesses to the stand. Importantly, the fifth session included the testimony of former Mpumalanga Tourism and Parks Agency CEO Jacques Modipane, who had placed on the record that he’d been warned by Mabuza’s henchmen not to appear before the judge.

As important, aside from the oral evidence, the plaintiffs had by then submitted thousands of pages of written testimony to the Pretoria High Court, mostly in support of Mabuza’s alleged role in a large-scale, many-tentacled criminal enterprise that originated in Mpumalanga back in 2002.

But less than six weeks after the closure of the fifth session, on 24 July 2023, President Cyril Ramaphosa discharged Judge Cassim Sardiwalla from the Bench. Given that Sardiwalla had presided over all the evidence in case number 34502/2010, Daily Maverick sent a list of questions to the Presidency and judicial leadership — questions that, as demonstrated by a press statement from the justice ministry accusing us of spreading “disinformation”, would remain (until this writing) forcefully disavowed.

For the plaintiffs, on the other hand, the summer of 2023 brought some exceptionally good news. Since they had unexpectedly secured ace advocate Tembeka Ngcukaitobi as senior counsel, for them there were only two questions left to ask.

First, would the new trial judge understand the urgency of getting the trial back on track? More specifically, would the new judge follow the explicit directive of Deputy Judge President Aubrey Ledwaba, who had stated in signed correspondence that the diaries of counsel would not affect the timing of the trial’s recommencement?

Second, would the new trial judge order that the trial begin de novo? In other words, after 14 years of litigation, would Daniel be required to begin again from scratch?

As regards the first concern, Ngcukaitobi submitted the following to the Gauteng Division of the High Court in Pretoria in his heads of argument of 28 March 2024:

“The defendants are not ordinary litigants. They are organs of state (or employees of organs of state) with heightened litigation duties. They ought to have approached this issue in a manner that better promotes the effectiveness and efficiency of this Court’s process. It is also in the interests of justice that the serious allegations of public corruption levelled against the defendants be determined as expeditiously as possible.”

By Daily Maverick’s reading, what Ngcukaitobi may have been alluding to here was the alleged “Stalingrad tactics” of the government defendants, which we had covered at length in August 2021 and again in September 2022.

More to the point, though, Ngcukaitobi was addressing a paragraph in the defendants’ heads of argument which referred to the availability of their own senior counsel.

“Advocates [Mike] Hellens SC and [Dawie] Joubert SC are prepared to set aside the first term of the year 2025, and if necessary, the second term of 2025, to begin and conclude this matter, and will keep the dates open,” the document noted.

And so, on 13 May 2024, when it was time for the parties to argue the question before Judge Neil Tuchten — who, as a former member of the Commission of Inquiry into Allegations of State Capture, appeared the perfect fit to replace Sardiwalla — it was a moment of palpable tension.

“Can I really impose a date?” asked Judge Tuchten, in response to Ngcukaitobi’s request that the trial resume on 1 June 2024.

“Yes,” said Ngcukaitobi.

“On the other side, where their counsel is not available?”

“Yes, well sure,” Ngcukaitobi continued, “that’s what the directive says. The directive says we’re not going to help them by non-availability of counsel.”

“I’m not sure that would be just,” responded the judge.

Ngcukaitobi was adamant. “My Lord, but then, when are we going to get the trial… I mean, we can’t have this trial in 2025, that is just a fundamental breach of my client’s rights. And of the Constitution.”

The precedent sidestep

As evidenced by the court order, which was signed and stamped by Judge Tuchten on the same day, Ngcukaitobi would lose the argument. The judge announced a short recess so that he could consult DJP Ledwaba on the matter, and when he returned he informed the parties that the power to set a date for the resumption of the trial was his and his alone.

Again, as suggested at the outset of this piece, to the casual observer it may have appeared that Daniel was on a hiding to nothing. Not only had the new trial judge denied him a fundamental constitutional guarantee — the section 34 right of every South African citizen to a fair trial — but the judicial leadership itself had walked back on its word.

And yet a careful reading of the court transcript, together with the full background context of the challenges now posed to the judiciary by case number 34502/2010, would convince Daily Maverick that Tuchten was skilfully managing a fraught and arguably dangerous situation.

For starters, given that Sardiwalla had presided over a virtual trial necessitated by Covid-19 as well as (according to the plaintiffs) the security of the witnesses, this was the first time that the parties were facing one another in open court. For Daily Maverick, the essential difference was the ability to pick up on the general atmosphere of the courtroom, as translated through the body language and facial expressions of the various participants.

Judge Tuchten had put it this way: “Well, speaking now from my own experience … a movie is not the same as a live show.”

He was addressing a central point in the plaintiffs’ heads of argument, which Ngcukaitobi had presented earlier in the hearing — namely, that since every trial day of the previous court sessions had been recorded via Microsoft Teams, the judge could simply watch the recordings and resume the trial from where it left off.

To Judge Tuchten’s reasonable insistence that he would prefer to see the witnesses in the flesh, Ngcukaitobi had conceded. But, in his response, the advocate added an ingenuous caveat.

“You want your own questions to be answered,” said Ngcukaitobi, “I perfectly understand that. That is why I suggest to your Lordship that the debate we’re having is really a false debate about whether it’s de novo or it’s a continuation. The real question is, it’s within your Lordship’s discretion about how this trial should continue … and it is possible your Lordship might identify the witnesses that you want to hear from, where it would not be sufficient to rely on video evidence or on transcripts.

“In which event we must then produce those witnesses, whether we produce them physically or we produce them online.”

For Judge Tuchten, it was clear by then that there would be no more “online” for case number 34502/2010; if he was worried about the security of the witnesses or even himself, he wasn’t admitting it to anyone. More significant, however, was the gap that he had just been offered by Ngcukaitobi; a gap that he appeared to be one step ahead of.

“Isn’t there another way?” the judge asked, rhetorically. “[There] is the Law of Evidence Amendment Act, I think, of 1988, am I right?”

“Yes, 1988,” said Ngcukaitobi.

“That would take care of a considerable scope for a positive advocacy,” stated the judge, “without having to bang up against the brick wall of precedent.”

“That is true,” Ngcukaitobi agreed.

So there it was, a judicial movement that deftly sidestepped the arguments based on case law and precedent, which had been brought by both parties in their attempts to sway the judge on the all-important de novo question. In the court order, it would appear as follows in paragraph 2:

“Subject to paragraph 3, the trial shall commence de novo.”

What, then, did the third paragraph state?

At the top, it ordered that these preliminary matters would be settled at another interlocutory hearing, set down for 21 and 22 October 2024. To be decided at that hearing, firstly, would be the status of the pleadings, with the plaintiffs arguing that they should “remain as they are” and the defendants arguing that they should “revert to their form or status before the start of the trial before the Honourable Justice Sardiwalla”.

In a nutshell, while the pivotal question of Judge Sardiwalla’s alleged “cognitive ailment” had not magically disappeared (see below), Judge Tuchten was setting aside two days to determine whether his predecessor’s rulings through the duration of the trial would stand or fall. The genius of the ploy was in the fact that it was an all-or-nothing gambit — no more court days would be wasted by the parties arguing for the status of each pleading on a case-by-case basis.

Then there was the second part of the third paragraph, which dealt with the admissibility of the oral evidence over which Judge Sardiwalla had presided. Here, the reference was to section 3 of the Law of Evidence Amendment Act, specifically “hearsay evidence”. According to the court order, the witnesses that had previously given testimony would be subject to the various provisions of this section — with, again, the plaintiffs applying for certain evidence to be admitted, and the defendants opposing.

As for the written and documentary evidence, Judge Tuchten was clear: the affidavits and discovered documents, such as the voluminous expert reports, would stand, as would the entirety of the court record.

What may have looked like a win for the defendants on the surface, therefore, on a deeper reading was turning out to be anything but.

Shark-infested waters

Still, if there was one thing above all others that demonstrated Judge Tuchten’s skill at navigating these shark-infested waters, it was the speed with which he forced the parties to arrive at a mutual agreement. Because, although the hearing had been set down for two days — 13 and 14 May 2024 — by lunchtime on the first day the respective legal teams were out in the hallway, banging out the court order.

By 3pm on 13 May, all that was required of the judge was his official stamp and signature.

As the parties would have been well aware, this was an unprecedented turn of events for case number 34502/2010. Not once since the matter had been lodged had the plaintiffs and defendants come together so readily — in fact, as demonstrated by the reported “disgust of the judiciary” back in August 2022, the trend was the polar opposite.

From the perspective of the judicial leadership, no doubt, these early signs of Judge Tuchten’s firm hand would have been a very welcome outcome. All indications were that the new judge would indeed be able to dispense of the matter by June 2025 — and his order that the merits and the quantum (ie, the legal arguments and the damages claim) would be argued “as one” was another major timesaver.

But, as hinted at above, there was still an issue of serious import for the judiciary that the new judge would have to navigate: the question of Judge Sardiwalla’s alleged “cognitive ailment”.

The defendants, in their heads of argument filed in March 2024, asserted that the nature of the ailment — unspecified, but apparently an “open secret” in legal circles — was such that it probably stretched back to July 2021, when Judge Sardiwalla first took control of case number 34502/2010. Ngcukaitobi, on the other hand, informed Judge Tuchten at the hearing on 13 May that the ailment was merely “speculative,” since no medical records had been furnished.

It was not a matter that Judge Tuchten could ignore, simply because it was a fait accompli that the defendants would be bringing it up again at the interlocutory hearing set down for October 2024. And in anticipation of this, it was Daniel’s advocate Jacques Joubert who told the judge what he did not want to hear.

“I just want to make this one point,” Joubert said on 13 May, “[Judge Sardiwalla] has given, since 2020 … 41 reportable judgments. And after his medical boarding … he’s given at least five reportable judgments. I just think that’s important for the court to know, surrounding the allegations of his cognitive situation.”

For the first and only time during the hearing, Tuchten appeared to lose his composure.

“If the parties drive me to it,” he said, “and it’s raised in the proper procedural setting, I will have to make a finding on this. I would very much like not to do so, but I would, if I had to.”

The irony here, from Daily Maverick’s perspective at least, was that it was the advocates for the Gupta brothers — Hellens and Joubert — who were driving a narrative that presented an almost existential problem for the judiciary. And more than that, it was these self-same advocates who at that very moment were facing the prospect of a misconduct probe for immigration fraud in Namibia.

Was Judge Tuchten, on behalf of the entire judiciary of Gauteng, going to fold in the face of such a narrative?

Again, this was a question that would be answered in October 2024.

For now, all we had to go by was Judge Tuchten’s performance on 13 May.

“The allegation,” he put to Hellens, at one point during the morning, “is grand corruption, is it not?”

Hellens, in response, was somewhat ornery. “Yeah,” he said, “they don’t understand corruption, but the allegation is corruption and collusion.”

“I understand corruption,” the judge said. DM

Read more in Daily Maverick: Mpumalanga ‘land claims scam’

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Note: The events outlined in this report took place on 13 May. In light of the historical sensitivities surrounding Daily Maverick’s reporting of the case, the decision was made to wait for the official court transcript before proceeding with the compilation of this article.

The precedent sidestep

Shark-infested waters