Analysis

Dear CJ Mogoeng, What’s Your Response To Allegations Of Trial-Fixing Against Durban High Court?

By Pinky Khoabane

Dear Chief Justice Mogoeng Mogoeng

I bring to your attention the matter between Dorothy Brakspear, Alison Bowler and Ian Brakspear; against Nedbank Group which is currently in the Royal Court of Jersey.

I’ve previously questioned the absolute silence of the South African judiciary, among many others, when the gross deficiency of one of the courts in this country is being completely annihilated in a court of law of another country. But it isn’t just the one court which is under scrutiny but the entire South African judiciary.

Eighty-three (83) year old Dorothy Brakspear makes damning declarations in her affidavit of 19 April 2018. Under the heading: “South African Court proceedings in 2014 under Judge Kgomo,” she writes:

“Again I can give a detailed report and evidence of Judge Kgomo court case should this Court require it, which would prove the deficiencies in the South African Judicial processes which are inconsistent with Article 6 of the European Convention on Human Rights.

“However I will give a brief overview below of how the Judge ignored all international law and relationships between legal entities during the course of the 2014 trial

“At page 299 of court transcriptions, Judge Kgomo instructions to Ian 
”KGOMO J: No, we are not in Jersey, sir, we are in South Africa. — You will remember we are in South Africa, that is why you are here. You haven’t litigated in Jersey; you are litigating in this country sir. Let’s keep to our South Africa law, forget about International law. The laws of Jersey belong to Jersey and I have no jurisdiction over what they do there. I have jurisdiction over what happens here, and you must subject yourself to the jurisdiction of the laws of this country. So forget of about the lofty ideas of some lofty court in some island paradise. ”

“Then at page 371
”KGOMO J: Forget about that, I told you yesterday you are in South Africa, what they do in the Isle of Man has got nothing to do with me in South Africa

Then at page 388
”KGOMO J: Sir, we are not interested in the definitions of a trust or of a charge or what

Then at page 393 
“MR BRAKSPEAR: Well, there is two different legal entities, M’Lord.

KGOMO J: Forget about the legal entities again, sir, is it not common cause that somebody who owed paid and then he in turn went to ask somebody he paid for to pay.

The fact that this case, originally heard in this country, is now in the courts of another, because justice is seen not to have been done here, and rightly so given the most astonishing events that occurred around this case, both here in South Africa and in Jersey, and the evidence which this country’s court completely overlooked, is itself an abomination.

Mr Chief Justice, this case in Jersey – in brief, deals with allegations that the sale of a farm now owned by billionaire Johann Rupert, was sold to him through a fraudulently contrived liquidation by Nedbank and its attorneys ENS as a means of:

  1. disabling the Brakspears and their company from suing Nedbank for the many millions in damages caused by their previous unprofessional conduct wherein they disclosed information to a buyer who had put an offer to purchase the farm causing the said buyer to cancel.
  2. providing a “legal” reason to cancel the already concluded R18m sale of the company’s farm to a Johannesburg buyer and then to facilitate its re-sale to a company owned by Johann Rupert, now for R25m

Here’s the background as published by Noseweek and republished here:  http://uncensoredopinion.co.za/how-nedbank-lied-and-lied-and-lied/

“Ian Brakspear, a Durban-based futures trader, was a longstanding Nedbank client. He was a beneficiary of the JAM Brakspear Trust (JAMBOT), set up by his late father in the Isle of Man to support his widow and their children, and the de facto settlor of a second offshore trust, the Westley Trust, registered in Jersey.  (We say de facto settlor, because Nedbank and its attorneys have – under oath, on different occasions – claimed various different candidates for the role.)

Ian Brakspear was also the sole director of West Dunes Properties 5, a South African company ultimately owned by a Panama-registered company, Westley Holdings, which in turn was supposedly controlled by his Jersey trustees who operated (so he was led to believe) on his instructions.

He was, ultimately, Nedbank’s client who instructed Nedbank to proceed in setting up the elaborate [“bespoke” they called it] offshore structure that their “expert” staff recommended – and paid them substantial fees for the service. Its purpose was to finance the purchase by West Dunes of a Franschhoek fruit and wine farm that happened to be adjacent to L’Ormarins, the famous Rupert-Rothschild estate, and that was to be developed as an upmarket country hotel and residential estate and then be re-sold at a handsome profit”.

In August 2007, a buyer emerged. They offered R37 million. But that offer soon fell through after the Brakspears claim Nedbank officials disclosed sensitive financial information about the farm to the seller. A year later, the farm was sold on auction – to the same buyer – for R18m.

The Brakspears immediately made it clear to Nedbank trustees that they faced a damages claim for the R19 million difference.

Just before that transaction was processed, Rupert, through his company Applemint emerged and offered to buy the farm at R25m.

Shortly thereafter, Nedbank, in the name of its Jersey trustee company and represented by ENS, brought a surprise high court application two days before Christmas for the liquidation of West Dunes, alleging the company was insolvent and owed the Jersey trust R7m in repayment of a loan.

The Brakspears have disputed this loan saying the R7m referred to was in fact a non-repayable distribution to Ian Brakspear as a beneficiary by the Isle of Man Brakspear Trust, and was recorded as such in that trust’s accounts. And indeed in the Jersey court, where they were able to force Nedbank to open its books, there’s now irrefutable evidence that this loan doesn’t exist.

In the High Court in Durban on 20 October 2014, Judge N F Kgomo, came to the conclusion that the R7m was a loan.

“It was this claim of £500,000 which the Westley Trust, represented by Nedgroup Trust, asserted as the petitioning creditor in the West Dunes winding-up [liquidation] application in December 2007,” said the judge. “I could not come across any evidence to suggest that this claim was promoted by Nedgroup Trust or its legal representatives otherwise than in good faith.  [ENS attorney Leonard] Katz stated in his evidence that he had relied upon the advice of an experienced senior counsel and insolvency specialist, advocate Brendan Manca SC when he formulated the claim which forms the basis of the founding affidavit [in the liquidation application].”

Judge Kgomo dismissed Ian Brakspear’s evidence as “mendacious” and “vindictive”. He said Ian Ian was “untruthful” and “unreliable witness” and Nedbank’s legal representative, through ENS, Leornard Katz called Ian “delusional”.

An investigation by Noseweek at the time revealed an extremely disturbing chain of events around the case which support the much held belief that SA courts are corrupt, liquidation trials are fixed and that there’s a lot of money that changes hands between court officials, judges, and lawyers.

Not only was it claimed that the signature on the provisional liquidation order was forged, but it also emerged that the signature in question, belonging to Court Registrar Chetty, was not only forged for the Brakspear order but in other liquidation cases.

The Hawks found the documents provided by the bank were riddled with flaws, there was no record of the liquidation of the Brakspear’s farm having taken place and the judge who had allegedly presided over the liquidation couldnt remember if there ever was such a case.

In Jersey, the Brakspears have made a significant breakthrough with the court ordering Nedbank Private Wealth, to open its books of account for inspection to prove or disprove the payments and cash flows that have in the past been claimed under oath by various Nedgroup officials.

There happens to be no paper trail that proved the R7million loan to the Brakspears ever took place. The misrepresentation by ENS, as exposed by the Bankers Book evidence, is enough to make your stomach turn. But more significantly, it is these misrepresentations on which Judge Kgomo made his findings. The Bankers Book shows that Ian Brakspear was not “untruthful” in his evidence to Judge Kgomo. Here are just a few taken from the affidavit by Dorothy Brakspear:

Bankers Book Evidence (Jersey) Law and the false representation to the South African Court in 2008, 2009 in the contrived liquidation (OJ Para 79 to 82) and again in 2014

  1. As particularized and quoted in Para 64 of the Order of Justice, the following was stated under oath in South Africa by Nico Botha on 19 December 2008

6. “In and during 2004 JAMBOT advanced the sum of £400,000 to the Westley Trust. “ 6. The Bankers Book evidence in Exhibit “SPF” shows no transaction for £400,000 and is irrefutable evidence of false representation made knowingly and deliberately by the Jersey trustee and its agent.

7. As particularized and quoted in Para 63 of the Order of Justice the following material statement of fact was stated under oath in South Africa by Nico Botha on 19 December 2008

“In and during June 2008 the Westley Trust lent and advanced the sum of £500,000 to West Dune at the latter’s special insistence and request. This amount was due and payable by West Dune but West Dune was unable to repay it. The claim of Westley Trust is unsecured. The current value of the claim of the Westley Trust is in excess of R7, 000,000.”

  1. The Bankers Book evidence of the Westley Trust accounts in Exhibit “SPF” shows no transaction advancing £500,000 to Westley trust and is irrefutable evidence of false representation made knowingly and deliberately by the Jersey trustee and its agent to the South African Court

9. As particularized and quoted in Para 65 of the Order of Justice the following was stated under oath in South Africa by Nico Botha on 11 March 2009 
“Accordingly the creditor [the Jersey Trustee] borrowed the sum of £500,000 from FPB [the Jersey Bank] which it then advanced to the company [West Dunes]. I refer in this regard to NB3 and in particular to the balance sheet at page 3 thereof which refers to “Creditors and accruals” in the sum of £500,000. Note 5 to the financial statements (which appears at page 5 of annexure NB30 reflects the creditor to be FPB in the sum of £500,000.”

10. The Bankers Book evidence of the Westley Trust accounts in Exhibit “SPF” shows no transaction by the Jersey Bank or any other bank advancing £500,000 to Westley Trust and no transfer of £500,000 to West Dunes in South Africa

11.Again irrefutable evidence of false representations made knowingly and deliberately by the Jersey trustee and its agent to the South African Court

12.As particularized and quoted in Para 65 of the Order of Justice the following was stated under oath in South Africa by one the Jersey Trustee legal team in South Africa, Justine Hoppe on 11 March 2009

Although the sum of £500,000 was paid directly by Fairbairn Private Bank to First Rand Bank, this payment was pursuant to an agreement between Westley Trust and the Fairbairn Private Bank in terms whereof the Fairbairn Private Bank advanced the sum of £500,000 to the Westley Trust”

13.The Bankers Book evidence of the Westley Trust accounts in Exhibit “SPF” shows no “agreement” between the Jersey and Westley trust and no evidence of the Jersey Bank advancing £500,000 to Westley trust and is irrefutable evidence of false representations made knowingly and deliberately by the Jersey trustee and its agent to the South African Court”.

Financial statement fraud (OJ Para 83 to 100)

32.The new evidence from the Bankers Book Order of Court also proves conclusively the financial statement fraud at Para 83 – 100 in the Order of Justice. The bank statements of Westley trust do not correspond at all to the entries in the unsigned and uncertified financial statements of Westley Trust”.

I could go on forever…..

Chief Justice Mogoeng, the last thing we need in our young democracy is lingering questions about the independence of our judiciary. We don’t need, as citizens, to remain with this impression that currently exists that the rule of law only applies to some and not to the powerful and their highly paid lawyers. One of the damning affidavits made by Dorothy Brakspear (containing information on the Bankers Book Evidence) went missing form the court files in Jersey – she complained and within no time the court instructed Nedbank to respond to her affidavit. Can you imagine a scenario in your courts where a court file disappears and the case continues? I cant…. But here’s an email we published in which Dorothy Brakspear questions the whereabouts of her affidavit http://uncensoredopinion.co.za/brakspear-documents-disappear-from-court-file-brakspear-vs-nedbank/

There already exists a perception, and rightly so, that there is no justice and that some cases, involving powerful people, are fixed – that they involve pre-determined outcomes by SA judges when working with lawyers of the powerful. It is alleged that some of these high-powered lawyers even write judgments for judges.

These are very serious accusations which the late Hawks Judge Essa Moosa was supposedly investigating before his death. We now have Judge F Kgomo in his place.

I would implore you to get involved in getting to the bottom of this case on allegations of trial fixing as a matter of urgency in the best interest of the South African people.

I have no doubt that you understand the full ramifications of the case in Jersey were the practice of trial fixing be proven to be true.

Sincerely Yours

 

Pinky Khoabane

 

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3 Comments

  1. Dear Pinky, I wonder if you emailed this letter to our chief Justice. I’d be interested to hear his response.

    1. No I havent but you can as a concerned citizen. I would be interested to hear what he says!

      Thanks for reading.

      Kindest

      PK

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