Professional Documents
Culture Documents
2022-08-30 Annexures To The Report
2022-08-30 Annexures To The Report
PRB 1
IN THE HIGH COURT OF SOUTH AFRICA
DATE: 2022-08-24
and
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PRB 1
TRANSCRIBER’S CERTIFICATE
TRANSCRIBER : A FOURIE
NUMBER OF PAGES : 77
REPORT ON RECORDING
1.
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34502/2010 – af 74 W VAN HOVEN
2022-08-24
PRB 1
can’t see on what basis the e-mail from Mr Webb to Mr
JUDGE: Yes.
NO FURTHER QUESTIONS
...[intervenes].
one.
settling all issues that are common cause and other issues.
This is a matter that is, can run for years at the pace and
running.
but you could reve rt to me any time between now and the
end of next week to say we are ready and we have done our
understood?
really reached the point where the main witness, the main
JUDGE: Yes.
that the only way that the plaintiffs are ab le to curtail the
ambit of the trial and the history have proven that, has been
will make the final ruling on it. But I just would like you
concern. So, I need you to spend the time and get, and
COURT ADJOURNS
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PRB 2
IN THE HIGH COURT OF SOUTH AFRICA
And
INTRODUCTION
1. Plaintiffs have already provided an abbreviated version of their claim by stating that the
Plaintiffs' cause of action is a claim for damages in the form of compensation for financial
loss caused by the defendants who intentionally, deliberately and maliciously caused
harm to the plaintiffs' lawful rights and interests, by wrongful and unlawful means, all of
which they did in breach of their legal duties and whilst actuated by the improper ulterior
motive to advance the defendants' other unlawful activities.
2. As far as the elements thereof are concerned the Plaintiffs have said, and maintain, as
follows:
Pff anxs 2p8
PRB 2
2.1. The plaintiffs’ rights and interests: The Plaintiffs owned various properties and
were pursuing a project to develop an important conservation and eco-tourism
project from which they would earn substantial income and profit.
2.2. The wrongful and unlawful means: There were a variety and multiple wrongful
acts over a long period. They included administrative frustration of applications and
permissions, publishing malicious falsehoods, arranging fraudulent transactions
related to alleged land claims, attempting to confiscate animals for resale, and
ongoing undermining of the Plaintiffs’ attempts to obtain justice.
2.3. The Defendants’ breached duties: The Defendants breached their statutory duties
inter alia to honestly administer the Restitution of Land Rights Act and Mpumalanga
Nature Conservation Act No. 10 of 1998 as also required by the Constitution.
2.4. The harm to Plaintiffs’ lawful rights and interests: Plaintiffs were in effect driven
off their land and forced to abandon their Project and sell their rights at a fraction of
the value but for Defendants' wrongful conduct.
2.5. The financial loss that was caused by the Defendants’ said conduct included loss
of the opportunity to complete the Project and earn the income and profit that they
would have earned but for Defendants' wrongful conduct, and serious damage to
the 11th Plaintiffs’ reputation.
2.6. The improper ulterior motive was to get rid of the Plaintiffs whose project stood in
the way of the Defendants’ other unlawful activities namely profiting from fraudulent
transactions related to land claims, allowing illegal barrier fences to shrink the
Reserve to benefit cattle farmers, and selling animals that should have been
protected, to hunters.
PROPOSAL
3. In what follows, Plaintiffs seek to determine and delineate what is really in dispute, not by
Pff anxs 3p9
PRB 2
way of bare denials or evasive responses 1, but by way of positive allegations of facts
that are contrary to Plaintiffs’ version. Every such alleged dispute must provide detail of:
3.1. Name of Defendants’ witnesses that will give such evidence, and
3.3. Which document/s at which page/s will be relied on in support of any such contrary
evidence.
4. Plaintiffs will ask for a further direction from the Court, on Wednesday 31 August 2022,
that any fact or document relied on by the Plaintiffs in any of the following:
D) Daniel’s Founding affidavit and Annexures in the Tolmay case (Cognotes Section D-1 -
Tolmay case Daniel docs) marked as D1-1 up to D1-201.
will be accepted as proved, unless disputed as above stating the name of witness that
will give such contrary evidence, and which document/s at which page/s will be relied on
in support of any such contrary version.
5. In other words, Defendants are required to provide written non-evasive responses, with
separate paragraph numbers in respect of every dispute fact or document relied on by
the Plaintiffs as referred to in paragraph 4 A-D above.
1
Refer Wightman v Headfour (Pty) Ltd [2008] ZASCA 6 re bare denials in application proceedings not good enough.
2
Please convey any difficulties you may have to access documents. We shall provide same by email.
4
Pff anxs p10
6.
PRB 2
Defendants must clearly state the name of every witness that will give such contrary
evidence, and which document/s at which page/s will be relied on in support of any such
contrary version, separately in regard to every disputed fact and document relied on by
Plaintiffs.
7. Any facts or documents relied on by Plaintiffs as above and not placed in real dispute as
above will be subject to the requested directive that such of Plaintiffs’ facts and
documents may be accepted as proven by the Court.
8. We shall provide for your convenience, in case of network or server problems, a link to a
zip file containing the documents in 4 C and 4 D above, without the Tolmay Annexures.
9. We also require direct detailed and non-evasive responses to Plaintiffs’ two requests for
admissions dated 1 August 2022 (A6-36 & A6-37).
TIMELINE
10. We shall provide an invitation to a Zoom meeting for 10H00 Friday 26 August 2022 which
will be recorded and transcribed as part of our report to the Judge. The purpose of the
Zoom meeting is to discuss the above and consider any proposals that the Defendants
may make.
11. We require written responses as referred to above by 09H00 on Monday 29 August 2022.
12. Final reports by Plaintiffs and Defendants must be exchanged by 16H00 on Tuesday 30
August 2022 and copied to the Judge’s registrar with the understanding that the hearing
will resume (as directed) at 10H00 on Wednesday 31 August 2022 to report back and
obtain further directions from the Court.
____________________
DATE: 2022-08-29
and
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PRB 3
TRANSCRIBER’S CERTIFICATE
NUMBER OF PAGES : 3
REPORT ON RECORDING
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2 Pff anxs p13
34502/2010 – sjed
2022-08-29 PRB 3
PROCEEDINGS HELD ON 23 AUGUST 2022
DISCUSSION
ADV J JOUBERT: You know, the Judge asked us to keep record of all
our …[intervenes]
ADV D JOUBERT: No, no, no, that is not what the Judge said, he says
we must report back to him in writing, not to keep record and record our
meetings, that is not what he said, unless you can take me back to the
transcribed record stating that, because I am upset, Jacques, you cannot say
things which is not factually correct, you have said it many times and it irritates
us, because it should not, it is not, we are all officers of the court, we should
do things properly, we should not say and make submissions and propositions
if that is not factually what is on record, you should stop doing it and it upsets
me.
understand that would be without prejudice, we can stop the recording, but we
need to report back to the Judge about our efforts to curtail the ambit of the
recorded.
twist facts and you distort facts and you do not understand your own case, for
example you say that this trial will resume on Wednesday, that is not the ruling,
the ruling is we report back on Wednesday and the case is postponed sine
ADV J JOUBERT: Let us just calm down a bit and let us just stick to
ADV D JOUBERT: No, we are not going to calm down, you have to do
in accordance with, we are officers of the court, you and us all have an ethical
duty to do things the right way and not the wrong way, I am not going to
participate further, as Mike say, you tell us now whether we need to leave or
believe if we have got nothing to hide, you have got nothing to hide, let us
…[intervenes]
goodbye.
END OF DISCUSSION
RECORDING OFF
Pff anxs p15
PRB 4
REQUESTS TO CURTAIL AMBIT OF THE TRIAL
1. May we please have your written proposals to implement the judge’s directive to
curtail the ambit of the trial at close of business today?
2. Do Defendants accept that the Plaintiffs’ proposals are reasonable under the
prevailing circumstances? If not why not?
3. Are the Defendants considering closing their case so that the matter can be
argued? If not, how many witnesses do they intend to call?
4.1. Are the Plaintiffs’ rights and interests as stated admitted? If not why not?
4.2. Wrongful and unlawful means – we accept that will be the major area for
dispute, let’s await your detailed responses by Monday.
4.3. Do 1st and 4th Defendants contend that they complied with all their statutory
duties?
4.4. Do Defendants deny that Plaintiffs were in effect driven off their land? If so,
why and on what basis?
4.5. Do Defendants admit the alleged ulterior motives? If not why not?
2 p16
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5.
PRB 4
How long do you estimate the cross examination of Mr Daniel will last?
6. Do you agree that one court day should be sufficient, specially once you have
clarified what is really disputed by way of contrary evidence?
7. Do you deny that in general terms, a court has the power to control the
proceedings which includes preventing abuse of process?
8. Do Defendants admit that the court may impose reasonable time limits on
examination in chief and cross examination? If not why not?
9. What do Defendants suggest will be reasonable time limits for the further
examination in chief and cross examination of the further witnesses?
10. We suggest one day for Daniel cross examination and for all further witnesses
one hour in chief and one hour in cross examination.
11. Will Defendants provide a written summary of the material facts that their
witnesses will testify to? If not, why not?
12. Will Defendants provide a copy of the alleged prescribed application form
(available between 2005 – 2008) for the authorisation of landowners to
reintroduce lion to Reserve as opposed to the prescribed form to be completed
by game dealers to convey lion?
13. Is it the Defendants’ case that the Plaintiffs never applied for the authorisation to
keep lion?
14. Is it Defendants’ case that the Nkomazi Wilderness owned by the Plaintiffs never
qualified for the authorisation to keep lion?
15. Is it Defendants’ case that Nkomazi Wilderness did not comply with the technical
requirements for the issuing of permits to game dealers to convey lion to the
Reserve? If so, which technical requirements were outstanding?
3 p17
Pff anxs
PRB 4
16. Do Defendants dispute the contents of Dr Engelbrecht’s affidavit at B-44 ?
17. Do the Defendants agree that Koos De Wet’s affidavit at B-45 may be admitted
as evidence? If not, why?
18. Do the Defendants’ agree that Bruce Hutchinson’s affidavit at B-818 may be
admitted as evidence? If not, why?
19. How did the application for lions by Dubai World differ from the documents or
applications for lion previously submitted on behalf of the Plaintiffs?
20. Do Defendants admit that the Dubai World lion application was the same
documents previously submitted on behalf of Plaintiffs after removing Plaintiffs’
name/s and inserting Dubai Worlds’ name/s? If not, why not?
21. Why would the 4th Defendant not agree to mediation as suggested by Richard
Spoor?
22. Did 4th Defendant have access to title deeds from the Deeds Office or elsewhere
– such as those referred to in the Delius report? If not, why not?
23. Did 1st Defendant consent to the erection of the barrier fence that reduced the
size of the reserve to less than 6000 Ha? If so, why?
24. Do Defendants admit that the barrier fence breached the Elephant permit
conditions? If not, why not?
25. Do Defendants admit that the breach of the Elephant permit caused damage to
the biodiversity of the Reserve?
26. Further specific questions may be sent by email over the weekend. To which
email addresses should they be sent?
4 p18
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PRB 4
__________________
Jacques Joubert
Plaintiffs’ counsel
Pff anxs p19
PRB 5
Office of the State Attorney
Pretoria
PRIVATE BAG X 91 SALU BUILDING
PRETORIA 316 THABO SEHUME STREET
0001 CNR FRANCIS BAARD AND
THABO SEHUME STREET
DOCEX: 298
29 AUGUST 2022
WITHOUT PREJUDICE
TO:
DLBM INCORPORATED ATTORNEYS
BY EMAIL: [email protected] & [email protected]
Dear Sir/Madam
titled “Plaintiffs’ with prejudice proposals in compliance with the court’s directive
2
PRB 5
A virtual meeting was called for by the plaintiffs’ attorneys for 11h00 on Friday,
26 August 2022. The meeting commenced with the recording function being
their respective clients, the defendants’ counsel were not prepared to have ‘with
3 Clearly the function of recording the discussions would be to use the contents
of those discussions, within the context of this part-heard trial, against such
4 There were repeated requests made not to record the discussions in order to
parties. The counsel for the plaintiffs insisted that he would “not back down on
this issue”. In the circumstances counsel for the defendants terminated the
5 In response to the proposals referred to above, and on behalf of the both the
MTPA defendants and the RLCC whom we represent, the following must be
placed on record:-
5.1 The attempted analysis of the nature of the plaintiffs’ case contained in
this document is not in accordance, and indeed at odds with the pleaded
amended.
3 p21
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5.2
PRB 5
Accordingly, whilst the plaintiffs attempt to set the background of the
5.3 The proposal contained in paragraphs 3, 3.1 to 3.3 refers to that which
action and the evidence underlying the cause of action. It is therefore not
admit or deny (in other words to place in issue or not place in issue) the
of claim and to the plea, and therefore to prove that which is alleged in
the particulars of claim and which is denied in the defendants’ plea. This
pleadings.
4 p22
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5.5
PRB 5
The above analysis shows that the plaintiffs do not understand the
6 The request contained in paragraphs 3; 3.1; 3.2 and 3.3 is unheard of in civil
7 With regard to the contents of paragraph 4, the requests contained therein are
impermissible in trial proceedings and out of line, inter alia with the law of
“plaintiff will ask for a further direction from the court on Wednesday 31 August
2022 that any fact or document relied on by the plaintiffs in any of the following
name of the witness who will give contrary evidence to the evidence of
the plaintiffs, and in addition to ask which documents at which pages will
who is the 11th plaintiff on the evidence given, with no duty to disclose to
5 p23
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PRB 5
the plaintiffs in advance what questions will be posed and the material
1965 and the applicable case law already referred to. No reference can
be made thereto.
4.
for the same reasons as to why the so-called statement of material facts
8 The court will be asked to rule when the matter next resumes, it having been
record. The ruling already exists with regard to the statement of material facts
by Mr Fred Daniel.
6 p24
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9
PRB 5
The response to paragraphs 5; 6; 7 and 8 flow from the above.
10 In addition, on behalf of the RLCC, the following questions are posed, which
the plaintiffs are free to answer or not, as the plaintiffs see fit:-
10.1 The plaintiffs are once again referred to paragraph 44 of their particulars
“Before acquiring the land, the eleventh Plaintiff had detailed enquiries and
land claims existed and no valid land claims could be lodged against the
including the land of the Nkomazi Reserve, which land comprised of the exact
With reference to that set out above, the defendants seek the following
10.1.1.2
PRB 5
The 4th-, 7th- and 25th defendants orchestrated land claims
Badplaas area.
10.1.2 In light of the above and with reference to the plaintiffs’ cause of
10.1.2.4 Do the plaintiffs admit that a right in land means any right
question?
successful?
10.1.2.7
PRB 5
Do the plaintiffs admit that at the time of acquisition of the
“The Plaintiffs do not admit that the land claims in respect of the
have never seen the original land claim forms and according to
verified.”
10 p28
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PRB 5
With reference to the above and with reference to the testimony
11 In addition, and on behalf of the MTPA defendants, the following responses are
supplied and the following questions are posed, which the plaintiffs are free to
The 1st, 4th-, 7th-, 10th-, 13th- and 23rd defendants’ response to the plaintiffs ‘with
prejudice’ proposals
Ad paragraph 1
11.2 It is further denied that the aforementioned defendants had at any stage
acted with any improper and/or ulterior motives and/or that they ever
plaintiffs.
Ad paragraph 2.1
11 p29
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11.3
PRB 5
The aforementioned defendants note that the plaintiffs, and more
on any basis at all that they would have earned any income and/or profit
Ad paragraph 2.2
and/or that they in any way undermined any of the plaintiffs’ alleged
11.5 It is denied that the aforementioned defendants acted with any common
purpose and/or that they formed any conspiracy with any other party to
11.6 It is denied by the aforementioned defendants that they were in any way
involved with any issues and/or claims with reference to any alleged land
claims.
involved in any manner whatsoever to drive the plaintiffs off their land
12 p30
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PRB 5
and/or that they allegedly forced the plaintiffs to abandon their project
they caused the plaintiffs any financial loss and/or that the plaintiffs can
claim and/or prove that there is any causal link between their alleged
conduct and/or any alleged damages, which the plaintiffs claim they may
11.9 It is denied by the aforementioned defendants that they acted with any
in paragraphs 2.7.
11.10 The 1st, 4th-, 7th-, 10th-, 13th- and 23rd defendants’ require from the plaintiffs
an admission that:-
with the national norms, standards and policies and relevant and
and/or elephant from any of the plaintiffs during the period 1999
to 13 June 2008;
13 p31
Pff anxs
11.10.3
PRB 5
the aforementioned defendants were not in any way involved with
prejudice’ proposal;
11.10.5 the 10th defendant (Jan Muller) at all relevant times acted lawfully
for a permit was submitted to the permit office of the MTPA, and
duly granted all permits which were correctly and fully completed
all the national norms, standards and policies and relevant and
applicable legislation;
11.10.8
PRB 5
Mr Dons Claassens of Tua Conserva never submitted any signed
2008;
11.10.11 the plaintiffs sold the entire ranch and/or resort and all the
11.10.12 as from 13 June 2008 the plaintiffs, and more specifically the 11th
plaintiff (Mr Fred Daniel), did not have any further authority and/or
11.10.13
PRB 5
after 13 June 2008 the plaintiffs, and more specifically the 11th
reserve anymore;
11.10.14 the alleged traversing rights claimed by the 11th plaintiff (Mr Fred
main road over portions of the reserve to the 2,5ha plot which he
retained;
11.10.15 the so-called barrier fence which was claimed to have been
finally amended;
11.10.17 the plaintiffs, more specifically the 11th plaintiff (Mr Fred Daniel),
any of the latter’s directors at any stage between the period 1999
12 With regard to the balance of the questions, the plaintiffs are asked to admit or
12.1 With regard to paragraph 10, the question of a ‘with prejudice’ virtual
response.
12.2 With regard to paragraph 12, the defendants do not understand what the
2022”. The judge did call for a further meeting of the parties by that date
and time, but he has indicated unequivocally, and made a ruling that the
Regards
MR NELSON GOVENDER
4051/7551/10/Z61
PRB 6
29 August 2022 Case Number 34502/2010
Dear Mr Govender
IN RE: GRAND VALLEY ESTATES & 11 OTHERS // MTPA & 24 OTHERS // CASE NUMBER
34502/2010
1. We refer to you letter of today’s date received shortly before 11.00 and are instructed to
respond as follows:
Ad para 1 to 4
2. There is no need to argue about what was said, the record is clear. Without prejudice
discussions would be futile and a waste, as it has invariably been before.
Ad para 5
3. We know that application and trial proceedings are different but contend that in the special
circumstances of this trial and the history of defendants’ obstructiveness and causing of
delays, the plaintiffs’ proposals were appropriate and would lead to an effective limiting of
issues as required by the court.
Directors
Edwin du Plessis B.PROC. LLM Dip AIPSA (UP) Adv Cert BR (Unisa) 14 Spantou Avenue PO Box 12200
Philip Lessing BLC LLB LLM Dip AIPSA (UP) Adv Cert BR (Unisa) Wapadrand, Pretoria Hatfield 0028
Candidate attorneys
Francois van Niekerk e-mail: [email protected] Reg. number: 99 / 14933 / 21
Divan van Zyl B.Com Law (NWU) LLB (NWU) www.dlbmattorneys.co.za VAT Number: 4200194928
Ad para 6 Pff anxs p37
PRB 6
4. The requests were appropriate under the prevailing circumstances.
Ad para 7
5. We asked for responses, not to the transcripts, but to the facts relied on by the plaintiffs as
set out in the transcripts and other documents.
6. Despite the use of phrases such as “unheard of”, the proposals were quite fair and
appropriate under the circumstances where there was a need to curb the ongoing abuse of
process by the defendants.
7. Those documents merely serve to make it clear to defendants the exact facts relied on by
plaintiffs, so that they can identify and list any contrary facts as requested.
Ad para 8
8. We disagree. Of course, the court can resume the hearing for purposes of report back and
for such directives the trial judge deems fit, including that the trial runs until Friday, 2
September 2022. Furthermore, in consultation with the Judge President, he can arrange for
the trial to be set down for a further period.
9. The defendants have not answered the plaintiffs’ two separate requests for admissions dated
1 August 2022.
Ad para 9 and 10
10. The only land rights that might have been regarded as valid claims were as reported by
Professor Delius.
11. The plaintiffs decline to admit or deny the questions of law. Only facts can be admitted or
denied.
12. There was no possibility of claimants being restored to land, save to the limited extent as
reported by the defendants’ expert Prof Delius.
13. Plaintiffs persist with their allegation that none of the claims were in any event properly
Pff anxsvetted
p38
or verified.
PRB 6
Ad Para 11
15. These paragraphs do not contain requests for admissions, and none are made.
Ad para 12.3
16. The purpose of saying that the “hearing will resume” was that such resumed hearing would
be for the purpose of report back and such directives the trial judge deems fit, including that
the trial runs until Friday, 2 September 2022.
17. Kindly note that we are instructed to request the trial judge’s registrar to reconvene the trial
for 10h00 tomorrow to report back to him as he had directed.
Yours faithfully
DLBM Inc Attorneys
[Electronically signed]
Pff anxs p39
PRB 7
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
and
1 The defendants have failed, more than three months after Molefe J, the judicial
case manager postponed the above case sine die, to comply with the following
directives:
1.1 To provide the witnesses' names, they intend to call in support of their
special pleas.
Page 1 of 11
Pff anxs p40
1.4
PRB 7
To approve the draft minutes of the case management meetings of 1, 22,
and 27 July 2020;
1.5 To instruct their expert, Dr. Anderson, to cooperate with the plaintiffs'
Professor van Hoven to prepare their expert joint minute.
2 The plaintiffs respectfully seek that the defendants immediately comply with the
above outstanding directives.
3 In light of the facts and circumstances set out herein below, the plaintiffs request
the following:
5 The first defendant is the Mpumalanga Tourism and Parks Authority, and the
fourth defendant is the Mpumalanga Regional Land Claim Commission.
6 The seventh defendant is the Mpumalanga MEC for Land Affairs and Agriculture.
He is also cited as a nominal defendant by virtue of Section 2 of the State Liability
Act No. 20 of 1957.
7 The alleged harassment escalated during Mr. David Dabede Mabuza's tenure as
MEC for Land Affairs and Agriculture.
Page 2 of 11
Pff anxs p41
9
PRB 7
Mr. Mabuza is the current Deputy President of South Africa and has sworn to
obey, observe, uphold, and maintain the Constitution and all other laws of the
Republic.
10 Andre Ferreira SC until May 2020 represented Mr. Mabuza's interests in the
litigation, even though Mr. Mabuza is only a witness for the seventh defendant.
His tenure as the MEC in Mpumalanga ended in 2009.
12.2 The matter was trial-ready for allocation of a preferential trial date by
the Deputy Judge President; [2] & [3]
14 DJP Raulinga accordingly specially allocated the preferential trial dates for 27
July to 28 August 2020.[7]
15 The defendants, including the seventh defendant, raised no concerns that the
trial's political magnitude could derail the trial readiness.
Page 3 of 11
Pff anxs p42
16
PRB 7
On 18 February 2020, the DJP issued a directive to reinstate judicial case-
management under Molefe J and appointed her as the trial judge.[8]
17 High court trials are expensive, and the plaintiffs, as self-funded litigants,
requested judicial case-management under Rule 37 (8) (a) to further curtail the
costs and duration of the 25-day trial.
18 The plaintiffs did not apply for further judicial case management because they
had any doubts about the estimated duration of the 25-day trial.
20 Seven days later, the first, fourth, and seventh defendants initiated
interlocutory proceedings on 25 February 2020 to compel discovery of a
confidential document they had known for years, were in the plaintiffs'
possession.
21 In doing as above, they did not heed the DJP's directive to participate in judicial
case management.
23 Nothing came from the threat after the plaintiffs discovered the confidential
agreement to avoid a further delay of justice caused by interlocutory
proceedings.
Page 4 of 11
Pff anxs p43
24
PRB 7
The seventh defendants' new senior and junior counsel, and senior and junior
counsel for the other defendants on the eve of the 25-day high court trial
continued their strategy to engineer a postponement of the trial.
25 On 15 May 2020, the first, fourth, and seventh defendants once again did not
heed the DJP's directive to participate in judicial case-management and
served a 108-page Request for Further Particulars on the plaintiffs.
26 After a herculean effort during the worst pandemic in living memory and on 25
June 2020, the plaintiffs answered the request for further particulars
comprehensively to avoid disruptive and costly interlocutory proceedings.
28 On 18 July 2020, the state attorney, copying in Molefe J, wrote to the plaintiffs'
attorney, specifically on behalf of the seventh defendant, to:
28.1 Warn he would likely appeal any decision for a trial of this "magnitude"
conducted virtually, as proposed by Molefe J; and
28.2 Say he saw no reason for the parties' experts to meet for joint minutes
because they deal with separate issues.
Page 5 of 11
Pff anxs p44
PRB 7
30 He did so even though he is not cited in his current capacity as Deputy
President of South Africa.
31 The state attorney's letter of 18 July 2020 and the Deputy President's
discovery on 20 July 2020 aimed to persuade Molefe J and the plaintiffs to
accept that the specially allocated trial would not proceed.
32 To pile further pressure on the plaintiffs, the seventh defendant served a Rule
28 (1) Notice of Amendment on the plaintiffs on 22 July 2020, on the eve of
the trial.
33 The Notice sought to withdraw an admission that puts the seventh defendant
at the center of land claim corruption—an admission he had made as long ago
as 4 December 2017.
36 The timing of the above Notice on the eve of a specially allocated high court
trial speaks volumes.
38 During the judicial case management on 22 July 2020, the seventh defendant
complained that heinous allegations of land claim corruption would require
weeks of cross-examination.
Page 6 of 11
Pff anxs p45
39
PRB 7
The plaintiffs objected to the characterization of their allegations as heinous.
The seventh defendant warned that Molefe J might face a recusal application
if she strayed into the case's merits.
40 The so-called heinous allegations of land claim corruption are in any event
found in the fourth defendants' own and long-hidden forensic reports.
41 The seventh defendant claimed at the meeting on 22 July 2020 that the parties'
experts disagree over the rights of South Africans who had been dispossessed
under Apartheid.
42 However, the seventh defendant knows that the plaintiffs agree with Professor
Delius's report concerning land claims' validity.
43 A joint expert minute by Professor Delius and the plaintiffs' historian, Professor
Tempelhoff, dispelled the narrative that disagreement existed between the two
experts.
44 There is no dispute over land claims and historical facts. The disagreement is
over land claim corruption and the continued efforts to conceal the truth.
45 Following the above conduct at the meeting of 22 July 2020 by the seventh
defendant, Molefe J intimated that the specially allocated trial might not go
ahead.
46 She was concerned about the number of witnesses the parties intended to call,
and she did not want a part-heard.
47 The defendants did not have any such concern when Molefe J certified the
case trial-ready on 11 December 2018 and agreed on 25 days.
48 Molefe J directed the parties to meet privately on 24 July 2020 to see if they
can reduce the number of witnesses by seeking admissions from each other.
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She offered to assist the parties during the first week of the trial if they could
not make progress on 24 July 2020.
50 The plaintiffs took comfort in Molefe J's above offer because case
management in the presence of a judge provided by Rule 37 (8) (a) would
make it difficult for the defendants to pretend that they have credible evidence
to gainsay the evidence of plaintiffs.
51 The next day, however, and before the private meeting directed by Molefe J
took place on 24 July 2020, the state attorney sent a letter to Molefe J. He
demonstrated that his clients had no appetite for judicial case management.
52 In the letter dated 23 July 2020, the state attorney accordingly expanded his
clients' witness list and threatened that if the plaintiffs reduced their witness
list, they would consider adding plaintiffs' witnesses to their list.
53 The seventh and other defendants defied Molefe J's proposal for the parties to
meet and in good faith to reduce the number of witnesses.
54 In response to the above letter, the plaintiffs sent a letter during the morning
of 24 July 2020 to complain to Molefe J about the defendants' bad faith.
56 The seventh respondent responded to the letter at the meeting on 24 July 2020
likening it to a schoolboy letter sent to a schoolmistress.
57 Ferreira told the plaintiffs at the same meeting that his clients will not consider
making any admissions even if they had to send someone to break his fingers.
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Instead, he referred the question to the seventh defendant's counsel, who
answered that the report was irrelevant and that the seventh defendant was
unwilling to admit the report.
60 It took a directive by Molefe J on 27 July 2020 for the defendants to allow the
experts to speak to each other, contrary to the specific instructions in the state
attorney's letter of 18 July 2020 that the experts do not need to meet.
61 In less than a week, Molefe J's directive for joint expert minutes obviated the
need for the testimonies of Professors Delius, Tempelhoff, Dr. Bool Smuts,
and Dr. Du Plessis. It means that altogether four expert witnesses no longer
have to testify at the trial.
62 However, a voice note transcript shows that on 31 July 2020, minutes after the
case was postponed sine die by Molefe J, Dr. Du Plessis was instructed by the
defendants to withdraw the joint minute he and Dr. Bool had signed.
63 Similarly, Dr. Anderson, the defendants' expert, was told by the defendants not
to cooperate with the plaintiffs' expert, Professor van Hoven and prepare a
joint minute.
66 The first, fourth, and seventh defendants have never explained how, according
to them, a 25-day trial could mushroom into a 50-day trial, immediately after
the seventh defendant briefed his new senior counsel.
67 On 31 July 2020, after seeing no indication that the parties were able to curtail
the trial's duration, Molefe J postponed the case sine die.
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68 The plaintiffs reserved the right to ask for the wasted cost of the postponement
of the trial.
70 The first and fourth defendants violate Section 7 (2) of the Constitution in that
they as organs of state are delaying justice and undermining the plaintiffs'
Section 34 rights.
71 The plaintiffs at the end of the trial have been advised to bring an application
under Rule 37 (9) (a) (ii) for special cost orders against the organs of state
defendants, their decision-makers, and respective legal representatives.[10]
72 The basis of the application will be their failure to "in a material degree promote
the effective disposal of the litigation" during the case management process
as is prescribed by Rule 37 (9) (a) (ii).
_______________________
Advocate Jacques Joubert
9 November 2020
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[1]
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As envisaged by paragraph 8.1.4 of the Judge President's Practice Directive 2 of 2019.
[2] Para 6.1 of the minutes of the CMM of 11 December 2018.
[3] Para 6.2 of the minutes of the above CMM.
[4] Para 7 of the minutes of the above CMM.
[5] Para 19 of the minutes of the CMM of 28 May 2019.
[7] Para 21 of the minutes of the above CMM.
[8] Para 2 of the minutes of the CMM of 18 February 2020.
[9] Para 2 of the minutes of the above CMM.
[10] As envisaged by paragraph 4 of the Judge President's Practice Directive 2 of 2019.
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