On 24 July 2023, for reasons that remain unknown to Daily Maverick, President Cyril Ramaphosa signed an order that discharged Judge Cassim Sardiwalla from his duties at the Gauteng Division of the High Court in Pretoria. As the trial judge in the Fred Daniel matter, Sardiwalla was presiding over evidence that implicated David Mabuza, South Africa’s former deputy president, in a large Mpumalanga criminal enterprise. Was there a conspiracy to quash the case?
Seal of the Republic
‘This de novo trial must also be held in open court.”
If ever there was a sentence that revealed the intentions of the state defendants in case number 34502/2010 of the Gauteng Division of the High Court in Pretoria, the infamous R1-billion civil claim that had been lodged by conservationist Fred Daniel against the Mpumalanga provincial government all the way back in July 2010, these few words appeared to qualify on every count.
For starters, there was the Latin phrase “de novo,” which translates as “from the beginning” or “anew”.
In the letter that state attorney Nelson Govender sent to Daniel’s lawyers on 9 November 2023, three days after the sixth session of the marathon trial was due to kick off, the phrase was repeated more than half-a-dozen times.
In other words, after more than 13 years of litigation, comprising millions of pages of correspondence, countless aborted case management sessions and upwards of 180 court days, the government defendants were now arguing that the whole thing needed to start again from scratch.
“It is trite law that when proceedings are commenced de novo,” Govender wrote, “it is neither permissible nor desirable for the new presiding judge to be allowed to see or read the evidence given on a previous occasion.”
Why was Govender so sure that there would be a new presiding judge? The precise answer to this question was something that Daily Maverick had been chasing since early September 2023, when the plaintiffs had been blindsided by the news — at a case management meeting overseen by Judge President Dunstan Mlambo of the Gauteng Division of the High Court — that Judge Cassim Sardiwalla was suffering from an alleged “incapacity”.
From there, in the weeks leading up to 6 November 2023 — when, to reiterate, the sixth session of the trial was scheduled to begin — the matter of Sardiwalla’s health had become progressively more opaque. There had been more than a few details that simply didn’t add up, but from our initial reporting there were three that stood out.
First, it turned out that President Cyril Ramaphosa had discharged Judge Sardiwalla on 24 July 2023, in a signed order that referred to him “becoming permanently incapable of performing his official duties.” Yet more than five weeks would pass before the plaintiffs, at the case management meeting of 4 September, would learn of the judge’s so-called “medical boarding”. Further, the plaintiffs would receive a copy of the President’s certified discharge order only at the end of October 2023.
Second, it appeared that the government defendants may have known about Sardiwalla’s discharge before the plaintiffs. In correspondence exchanged between the parties on 29 September, Daniel’s lawyers asserted that it was “apparent from the prepared submissions presented by the defendants’ counsel” at the meeting of 4 September that “they were indeed prepared to deal with specific issues.” One of these issues, it was noted, was “the unbridled attack on the trial judge, inter alia, by casting doubt on his cognitive abilities in an attempt to vitiate the proceedings.”
Third, despite four requests to the office of Judge President Mlambo for a transcript of the meeting of 4 September, at the time of this writing, to Daily Maverick‘s knowledge, the plaintiffs had still not received the document.
On their own, these three points would have been enough to raise suspicions. The government defendants’ consistent use of the Stalingrad defence had been a subject we’d covered through the duration of the trial — it had justified two standalone pieces, in August 2021 and September 2022, and in May 2023 it had culminated in a cost order against the defendants for attempting to have Daniel’s advocate removed and the trial declared a nullity.
By our assessment, in terms of the legal truism that “justice delayed is denied,” the confusion around Sardiwalla’s discharge was, at the very least, more of the same. But a few months into our reporting, we would discover something that took it to a whole new level; a detail that had been staring us in the face.
A simple search of the Southern African Legal Information Institute database revealed that Judge Sardiwalla had handed down at least five judgments after 1 August 2023, when his discharge came into effect. These judgments, on pending matters, included complicated cases to do with the Legal Practice Council, a financial services company and an application for an interdict against the EFF.
- Fedbond Nominees (Pty) Limited v Crypton Properties CC and Another, handed down on 7 August 2023;
- Keele v Legal Practice Council and Another, handed down on 22 August 2023;
- Gas Giants CC and Another v Economic Freedom Fighters and Others, handed down on 31 August 2023;
- Ngcebetsha and Another v Legal Practice Council of South Africa, handed down on 4 September 2023; and
- Matsi Law Chambers Inc v Lesiba Jeremiah Mailula, handed down on 7 September 2023.
The judgments, for us, did more than test the defendants’ allegation that the judge was “cognitively” impaired; crucially, they placed an enormous question mark next to his non-appearance at the sixth session.
And so, by mid-November 2023, shortly before we sent our requests for comment to the President’s office and the judiciary, one would be forgiven for contemplating the worst-case scenario:
Was there a conspiracy to quash the case number 34502/2010?
To be clear, despite months of anxiety and hand-wringing, Daniel and his advocate, Jacques Joubert, would not arrive at any definitive conclusion about the possibility. To them, in their engagements after 4 September with Judge President Mlambo and Deputy Judge President Aubrey Ledwaba, it appeared “plausible” that the integrity of the judiciary remained intact.
By purely journalistic standards, however, there was much more room for doubt. It all had to do with the insistence of the government defendants that the trial should begin de novo, and that the new proceedings should take place in open court.
Not the World Cup
On 21 June 2023, Daily Maverick published a piece under the title, “Fearful witness gives explosive testimony against former deputy president Mabuza”. In it, we pointed out that the last week of the fifth session of case number 34502/2010 had been marked by testimony that included allegations of political interference, fears of assassination and details of endemic corruption at the Mpumalanga Tourism and Parks Agency (MTPA).
The witness for the plaintiffs was Jacques Modipane, a former member of the ANC who had served as the CEO of the MTPA between 2012 and 2014. On the morning of 8 June 2023, we reported, Modipane had opened his testimony with the assertion that the man who’d succeeded him as CEO, Boy Johannes Nobunga, had called him up the previous evening with a veiled threat.
“You must be very careful, you cannot work with Fred Daniel, he is not a reliable guy’,” Nobunga had allegedly told Modipane. “He then started saying to me that we must not give evidence against the leaders of the ANC, because we are jeopardising the ANC.”
That same morning, Modipane continued, he had received another call, from a person who was known “to be close” to former deputy president David Mabuza — this deliberately unnamed person, the witness explained, had allegedly asked to come by “for a visit”.
“I am very angry with Mabuza because he placed my family into a crisis for nine years now,” Modipane informed the court, “almost 10 years I am not earning a living because of Mabuza.”
The clear allegation here was that Mabuza had been waging a personal vendetta against him, entirely because of his refusal to comply with — and benefit from — the various rackets that had taken control of the agency. But more than that, Modipane testified, was the apparent fact that “during Mabuza’s tenure [as premier of Mpumalanga] from 2009, many people in the ANC … were assassinated.”
Importantly, neither advocate Dawie Joubert SC, acting for the Mpumalanga government, nor advocate Mike Hellens SC, acting for Mabuza in his personal capacity, had cross-examined Modipane on the opening part of his testimony. Which meant, of course, that it remained an uncontested part of the court record.
Equally obvious, if the government defendants got their way and the trial began de novo, Modipane’s testimony would be expunged from the court record.
The second part of Modipane’s evidence, where he outlined the fictitious debts that the MTPA had racked up in the years before his appointment, would go the same expunged way. As would the witness’s testimony that Mabuza had stifled all his attempts at settling the damages claim with Daniel.
Would Modipane take the risk of placing it all on record again, word for word and from the start, in an unprotected open court?
By any reckoning, it would be a remarkably brave thing to do. And here, it appeared, was where the leverage in the defendants’ strategy lay.
The virtual trial, which had kicked off on Microsoft Teams in the winter of 2021 due to Covid-19, had accorded a great deal of safety and assurance to Daniel’s list of witnesses. Not only that, but it had saved Daniel the combined expense — which he was footing from his own pocket, while Hellens, (Dawie) Joubert and Govender were getting funded and paid by the state — plus for all travel, meals and accommodation.
And yet still, as Daniel told Daily Maverick in October 2023, the trial had almost bankrupted him.
“There is no way I can afford to run it all again in open court,” he said.
For Daniel, since he had closed his case with the testimony of Modipane, and given that the defendants’ latest counter-move had come in the wake of the Rugby World Cup, the closest analogy — if the judiciary did indeed award a de novo open court trial — was to a Springbok who was about to score the winning try in the closing minute of the final.
“There’s nobody ahead of him,” Daniel offered, “the try-line is wide open and he’s two metres from the mark, with 30 seconds left on the clock. The ref blows the whistle, takes the ball away from him and kicks it into the stands.”
Evidence, shmevidence
But that’s what the Springboks would’ve lost. The bigger question, for Daily Maverick at least, was what did the country stand to lose?
As anyone familiar with this historic case is well aware, the prodigious evidence that the plaintiffs’ witnesses have submitted under cross-examination to the Pretoria High Court has dealt, in the main, with the so-called “land claims scam” — a many-tentacled organised crime operation, allegedly overseen by former deputy president Mabuza, that cynically abused the Restitution of Land Rights Act to enrich an unlikely cabal of white Afrikaaner middlemen and ANC party loyalists.
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 ANC-controlled South African government had been stealing the land from the very people to whom it was supposed to be given back. As he had come to learn over the years, the mechanisms for this gigantic fraud were never obvious or direct; rather, with their hands on the provincial land reform funds that flowed in yearly from the national budget, Mabuza and his partners could get creative.
To refer to just a handful of the articles that Daily Maverick has published on the matter in the past three years, the first item of ANC-linked evidence was placed on the court record in August 2021, when former SAPS inspector Kobus Vermeulen provided testimony of a hostage situation at the Badplaas police station that had occurred a few days before a violent protest at Daniel’s nearby nature reserve. Both of these events, according to the tenor of Vermeulen’s evidence, had been orchestrated by Mabuza himself, who at the time — the winter of 2008 — had been the Mpumalanga MEC for agriculture and land affairs.
“He basically applauded them and told them not to worry,” Vermeulen testified, with reference to Mabuza’s surprise arrival at the protest, “[saying] that the land will be given back to its lawful claimants.”
In the same article, we cited the testimony of forensic investigator Paul O’Sullivan, which provided a detailed history of the spate of fake land claims that had been registered in the Badplaas region of Mpumalanga during Mabuza’s tenure, as well as the methods by which land prices had been inflated and the “profits” split between government employees and local white middlemen.
Included in O’Sullivan’s testimony was documentary evidence of payments to a certain Pieter Visagie, the Badplaas speculator who had been outed as the “architect” of the land claims scam when the story first broke in City Press in September 2004. By any estimation, the hottest piece of evidence was a letter of motivation to the provincial land claims commissioner for a payment of R3.4-million to Visagie — over and above the R18-million he had already been paid — drafted and signed by Mabuza in January 2009.
Still, as Judge Sardiwalla would hear, the colluding partners over the years had not been limited to the same Afrikaaner middlemen. In February 2022, during the third session of the trial, human rights advocate and land reform specialist Richard Spoor would take the stand, to confirm the general pattern of racketeering, further substantiate the campaign of harassment against Daniel, and expose the alleged involvement of Mabuza’s wife, too.
“To the best of my recall substantial sale commissions were paid to Premier DD Mabuza’s wife,” paragraph 52 of Spoor’s witness statement noted, “who was a Pam Golding estate agent.”
Spoor was not asked to provide oral testimony on this aspect of his statement, which prompted Daily Maverick to undertake its own deep dive into the documentation. The resulting article, which followed the trail all the way from the infancy of the scam, in 2004, to its maturity, in 2015, would draw the attention of Major-General Kubandran Moodley of the Hawks, who in April 2022 would appoint a team of senior officers to investigate.
What Moodley and his team would discover, however, was that a number of criminal investigations had been attempted before.
In our article “Revealed: David Mabuza, Fred Daniel and the missing crime dockets,” published in August 2022, we provided evidence of three absent or empty case files, which had each been focused on smaller slices of the larger criminal enterprise pie. The effect of the missing dockets, since they spoke of political interference at the highest levels, was to chill the Hawks team into submission.
But then, on 5 December 2022, inspired largely by the missing dockets, the Organisation Undoing Tax Abuse (Outa) filed a 41-page criminal complaint under the Prevention of Organised Crime Act, with Mabuza’s name atop the list of 15 suspects. For the first time, the entire litany of allegations was included in a single affidavit, and the relationship between the land claims scam and the corruption at the MTPA was made abundantly clear.
At Daily Maverick, given that the affidavit contained embedded online links to all the substantive and prima facie evidence, we assumed that DD “The Cat” Mabuza may have run out of lives.
We were wrong.
Almost a year to the day later, after too many follow-ups to count, the Investigating Directorate of the National Prosecuting Authority had still not provided us with an update on the status of the complaint. Which meant that there was only one place left to turn.
Last-Chance Saloon
Our questions to Judge President Mlambo and Deputy Judge President Ledwaba, sent on the afternoon of 22 November 2023, were almost identical to the questions we sent to the office of President Ramaphosa, at exactly the same time.
To open the questions, we cited Ramaphosa’s order of 24 July, where the only explanation provided for Judge Sardiwalla’s discharge was that he had become “permanently incapable” of performing his duties.
“Given that the plaintiffs closed their case at the end of the fifth session of the trial in June 2023,” we asked, “do you assert that the timing of the discharge was a coincidence? If so, could you perhaps provide our readers with a more comprehensive account of why Judge Sardiwalla was discharged?”
The question did not elicit an answer from either of the parties.
Neither did the questions that followed. At the time of this writing, we still do not know why it took more than five weeks for the plaintiffs to be informed of Sardiwalla’s alleged “incapacity,” and we have not been provided any reason as to why a copy of the official discharge order was only furnished at the end of October, a week before the sixth session was due to begin. Similarly, we don’t know why, despite four written requests to Judge President Mlambo, the plaintiffs do not have a transcript of the meeting of 4 September.
But for us, again, it was the refusal to answer the final question that raised the likelihood of a conspiracy.
“Since his discharge on 24 July 2023,” we wrote, “Judge Cassim Sardiwalla has handed down at least five judgments, including but not limited to:
- Fedbond Nominees (Pty) Limited v Crypton Properties CC and Another, handed down on 7 August 2023;
- Keele v Legal Practice Council and Another, handed down on 22 August 2023;
- Gas Giants CC and Another v Economic Freedom Fighters and Others, handed down on 31 August 2023;
- Ngcebetsha and Another v Legal Practice Council of South Africa, handed down on 4 September 2023; and
- Matsi Law Chambers Inc v Lesiba Jeremiah Mailula, handed down on 7 September 2023.
“Given these comprehensive judgments, which appear to undermine the assertion of the government defendants in case number 34502/2010 that Judge Sardiwalla has been suffering from an alleged ‘mental incapacity,’ could you perhaps provide clarification as to why the incumbent trial judge did not take his seat on 6 November 2023 to preside over the sixth session?” (Sorry for the repeat listing of the five cases - we felt we also needed them presented to you earlier in this story - Ed)
As things stand, Daily Maverick has learnt, the matter has been referred to justice minister Ronald Lamola, who will apparently appoint a judge to replace Sardiwalla. There is no clarity, however, on whether the decision on a de novo trial will be up to the replacement judge, Judge President Mlambo or Lamola himself.
At stake, for the voting citizens of South Africa, is the democratic future of the country. If the order is made to start the trial from scratch, at least the position of the Ramaphosa cabinet will be clear: DD “The Cat” Mabuza has not run out of multiple lives just yet. DM
Update at 4pm on Tuesday, 5 December
Neither Ramaphosa nor Judge Mlambo responded to queries from Daily Maverick prior to publishing this article.
The Ministry of Justice and Correctional Services on Tuesday issued a statement in response to Daily Maverick’s article.
According to the statement, neither President Ramaphosa nor Justice Minister Ronald Lamola were made aware that Judge Sardiwalla was presiding in the matter involving former deputy president David Mabuza.
“To link the President of discharging Judge Sardiwalla from active service for any other reason except his medical condition and write about without any facts to support that such a sensational claim is rhetorical strategy which has the hallmarks of disinformation. To further create an impression that the President would discharge a Judge from active service on medical grounds for flimsy reasons is an insult to our Judges,” read the statement.
At a press conference on Tuesday morning, judge Mlambo responded to a question from a journalist regarding Daily Maverick’s report and his alleged involvement in the Fred Daniel matter.
Mlambo said: “When Judge Sardiwalla mentioned to me that he’s not well, it was some time before I actually approached the Minister of Justice to approach the President to discharge him. What had happened was, the Covid-19 restrictions had ended and we issued a directive for all legal proceedings in our courts to go back to the default position of in-person hearings. Judge Sardiwalla was the lone exception who stayed marooned in Durban doing this particular matter virtually.”
Mlambo said he had implored Judge Sardiwalla to return to the Gauteng division after receiving reports that “things were not going well” with the proceedings Sardiwalla was handling. According to Mlambo, Judge Sardiwalla had told him that he was continuing with the matter virtually because of his health and wanted to remain in Durban because of his support structures.
Eventually, Mlambo said to Sardiwalla that he can’t be forced to continue working but then needed to provide a medical substantiation for his health situation – which he subsequently provided.
“When we got it [the medical substantiation], I had a session with him and the DJP to say we will approach the Minister to approach the President to board you [Sardiwalla] medically on certain conditions,” said Mlambo. According to Mlambo, the two conditions were that he must finish the trial in the Fred Daniels matter, and he must finish his reserve judgments that were outstanding. Mlambo said Sardiwalla agreed to the conditions.
However, Sardiwalla informed Mlambo that, because of his medical condition, “he was not going to do justice in continuing to stay in the matter.” Therefore, a judicial case management matter was convened with the DJP and all parties involved to discuss the situation and present two options to resolve it.
The first option, according to Mlambo, was to let all the evidence that has been pleaded be given to a new judge so the matter would not start from scratch but continued from there. The second option was to start afresh before another judge.
“That situation is beyond my hands. Anyone who wants to accuse me of being involved in some stratagem to influence the outcome of this matter has not considered these facts and I know that the legal professionals who were involved in these matters were given a full briefing on Judge Sardiwalla’s condition,” said Mlambo.
“And it’s not the first time we have a judge being medically boarded – it happens. Judges are not robots… I refuse to accept that I am involved in a stratagem to influence the outcome of this matter,” he said. DM