SHOULD South Africa’s judiciary not be concerned when a foreign court gives legitimacy to a complaint of trial-fixing in South African courts?
Businessman Ian Brakspear and his family looked to British courts for justice having lost faith in South Africa’s judiciary. This followed allegations of corruption by the courts in what the late Hawks Judge Essa Moosa referred to as organised crime syndicates facilitating trial-fixing in SA courts. Judge Moosa had initiated an investigation into this matter but died after a brief illness before conclusion of this case.
The Brakspear case, now in the Royal Court of Jersey, stems from an alleged fraudulent liquidation of Dorothy Brakspear’s farm in Franschoek to enable the sale to neighbour billionaire businessman Johan Rupert.
In court papers before the Royal Court of Jersey, late last year, 83-year old Dorothy Brakspear painted a sordid web of legal chicanery, corporate deceit, and a £500,000 fictitious loan, all of which culminated in alleged fraudulent behaviour and the ultimate liquidation of the family business. Nedgroup Trust (Jersey) Limited is the defendant.
The reason for the liquidation was allegedly as a result of “trial fixing” whereby any evidence of the alleged unlawful liquidation was withheld from the courts with the assistance of the judiciary. The evidence stemming from what is seemingly corruption in the Durban High Court where the trial took place, should have warranted an immediate investigation into that court. 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 family accused the Nedcor group of perverting the course of justice to secure a fraudulent winding up order.
And Here Is The Evidence
1. Provisional Liquidation
Did Judge Balton actually grant the provisional liquidation order in the Durban High Court on 23 December 2008. Here’s what the Hawks found:
Exhibit A: High Court stenographer and IT manager, Strinivasan Naidoo, claimed in an affidavit presented to the Hawks that there was no record of the Brakspear liquidation case ever taking place in the Durban High Court on 23 December 2008. This was the date that the provisional liquidation order was supposedly granted. This order was made final in February 2009, and there is a transcript available of this hearing. But what actually happened in court on the day of the provisional liquidation hearing is hotly disputed. Naidoo says Judge Balton presided on other matters on that day, but not the Brakspear case.
Attorney Leornard Katz of ENS says in his replying affidavit that the matter was heard in chambers by Judge Balton on 23 December, and the provisional liquidation order was granted that day. ENS typed up the order, as is common in such cases, and took it to the court registrar for signing, though he had no recollection of who signed.
Exhibit B: Court Registrar Chetty who supposedly signed the provisional liquidation court order for the Brakspear case on 23 December 2008 confirmed in an affidavit to the Hawks that the signature on the court order was not hers and had been forged.
Exhibit C: Forensic document examiner, Yossi Vissoker, confirmed the signature on the court order was not by the hand of Ms Chetty and, after comparing it to her actual signature, added: “the dissimilarities are shocking.” After examining several other court orders supposedly signed by Ms Chetty, he went on: “The need to forge Ms Chetty’s signature wasn’t a once off occasion, but an ongoing occurrence in the court. The purpose of which is unknown to me.”
This in itself should set the entire Durban court system alight. Of course, it may be that other people in the office are signing on behalf of the registrar, but forging Ms Chetty’s signature?
It begs the question: how many liquidation orders with forged signatures have been issued by rogue elements operating out of the Durban court?
Exhibit D: An affidavit by Lt Mbhele, the Hawks’ investigating officer, stated: “When the liquidation was eventually heard at the high court, it is clear that most of the documents have been created. The signatures on important documents are fraudulent and I base this on the statements of the responsible officials.”
The court officials interviewed by the Hawks found the documents riddled with flaws, while there was no record of the hearing ever having taken place.
While there’s enough evidence to question the court processes, what remained in dispute is the version by Brakspear’s attorney Fiona Scott who claimed she had advised her client from court on 23 December 2008, in a telephone conversation, that it would be to the Brakspear’s advantage to consent to the Order which would mean the farm would no longer go on auction for R18m but would be sold to Rupert-controlled company Applemint Properties 9 for R25,2 million. The attorney claims Brakspear consented but he disputes this version of events.
Judge Balton granted the provisional liquidation order…or so it seemed.
Exhibit E: Does Judge Balton remember the case perchance? Apparently not. In a letter to Brakspear, Deputy Judge President Jappie says he spoke to Judge Balton and the registrar for Judge Gorven (who gave the final liquidation order) and neither recall hearing the matter.
Exhibition F: There happens to be no paper trail that proved the R7million loan ever took place. Neither by the Hawks nor by Bank.
“I have found out that there is no copy of the request by West Dunes for a R7 million loan from Westley Trust in June 2008,” according to a statement from Lt Mbhele of the Hawks.
“There is no copy of proof of R7 million payment by Westley Trust Jersey to RMB in or about June 2008.
“There is no copy of receipt of R7 million by RMB in or about 2008.”
Further, the Hawks found no evidence that the Westley Trust had R7 million in the first place to lend to West Dunes, and – damningly – “there is no evidence that Nico Theo Botha was the chairman of BOE, no evidence that Nico Theo Botha had personal knowledge and could swear positively to the facts contained in the affidavit (presented in the liquidation hearings).”
Brakspear attempted to have his case heard by an alternative judge but the judge said his papers were missing in what is called a ‘dummy file’ – an old trick to delay the matter from being decided on.
The case is in the UK and there’s not much said about this here in this country where there’s now a massive anti-corruption campaign under-way.