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Dead Matter (Part Three): David Mabuza, Fred Daniel and the trial of Mpumalanga’s collapse (South Africa)

By March 16, 2021Law & legislation

South African Deputy President David Mabuza giving a speech. Image: GCIS

Kevin Bloom, Daily Maverick / Our Burning Planet | March 15, 2021

Read the original story here.

At the end of January 2021, in amongst the headlines on Covid-19 and the virulent new British strain that was set to hit the United States “like a hurricane,” the Los Angeles Times published an op-ed that riffed on a brand-new addition to the English lexicon: “collapseology”. It was heavy reading for the paper’s Sunday edition, particularly given the new dawn that was supposed to have been heralded by the inauguration of Joe Biden, but the facts in the piece were as true as they were newsworthy. For many decades, the authors noted, an ever-growing number of scientists had been warning that the exploitation of the planet’s resources would lead to societal collapse — lately, they added, some of these scientists were suggesting that the collapse may have already begun.

A key reference in the op-ed was the 1972 text Limits to Growth, commissioned from the Massachusetts Institute of Technology by the Club of Rome. In that famous paper, an international team of researchers had concluded that the earth’s interlocking resources would “probably not” support economic and population growth much beyond the year 2100, “even with advanced technology”. The researchers’ computer simulations had delivered twelve future scenarios, from relative peace and prosperity under high mitigation to pretty much apocalyptic on a “business as usual” trajectory.

“The gloomiest model was the one in which the ‘present growth trends in world population, industrialisation, pollution, food production and resource depletion continue unchanged’,” the authors of the op-ed observed. “In that ‘business as usual’ scenario, collapse would begin slowly in the 2020s and accelerate thereafter. Updates to the ‘Limits’ study have found that its projections, so far, have been spot-on.”

And indeed, an update out of Harvard University, published in March 2020, revealed that the gloomiest model had “possibly” come to pass — although the researcher, not wanting to put too dark a spin on things, had chosen to close her paper in the passive voice:

“This suggests,” she wrote, “that humanity is on a path to having limits imposed on itself, rather than consciously choosing its own.”

Euphemisms aside, the Harvard update was in line with a range of alarming pronouncements about near- to medium-term collapse, including an open letter published in the Guardian in December 2020 by scientists representing more than 30 nations (“A warning on climate and the risk of societal collapse”); a report by Future Earth published in February 2020 that collated the work of climatologists, sociologists, economists and ecologists to conclude that the story of our “collective future” would be written in the coming decade (“Our Future on Earth”); and a shrill breaking news item on 26 January 2021 that presaged the imminent inundation of planetary coastlines (“Speed that ice sheets are melting ‘confirms the worst-case scenario’”).

Then there were the hard facts of science, intricately linked to the above, that spoke of the decimation of species other than the human — for instance, the fact that 76% of insect biomass on earth had recently been wiped out, or that Africa’s elephant population had plummeted from 20 million to 400,000 in less than two centuries.

The upshot of it all, if indeed there was one, was that “collapseology” could hardly be considered the domain of doomers and flakes. All across the globe, from deep in the Amazon rainforest to the halls of the United Nations in New York — where, in January 2020, the Convention on Biological Diversity had called for a third of the surface of the earth to be “under protection” by 2030 — men and women had been waking up to the reality that the data translated into life-threatening situations on the ground. And in South Africa, if there was one human being that lived the data in his bones, his name was Fred Daniel.

“A judge needs to see my case against the backdrop of the much larger context,” he told Daily Maverick, during a telephone conversation in early February. “We are so obsessed with the mechanics of corruption that we lose touch with the biggest issues we have ever faced as a species.”

The case Daniel was talking about, as outlined in Part One and Part Two of this series, concerned the R1-billion damages claim that he had brought against the Mpumalanga Tourism and Parks Agency and a host of government entities in 2010. Due to kick off in the North Gauteng high court on 19 July 2021, the long-delayed civil suit had lately been punted in the media as a David-and-Goliath battle between Daniel and South Africa’s deputy president, David Mabuza, who had served as MEC for agriculture and land affairs in the Mpumalanga provincial government in 2008-09 before becoming the  Premier in 2009. But as far back as 2003, when he was still buying up farm plots in fulfilment of his vision to regenerate one of the most threatened biomes on Earth, Daniel had been blowing the whistle on the land claims scam that the government office had allegedly been running with local middlemen — and for his troubles, even after he had been forced to sell his private reserve, he would face down harassment, smear campaigns and an endless supply of death threats.

This, then, was the “mechanics of the corruption” that Daniel was hoping the judge would be able to see beyond. Not that the corruption itself wasn’t important — in terms of the plaintiffs’ evidence, it was of course the core of the case — just that Daniel was looking at things from many floors up. During the dozens of telephone calls and meetings that went into the reporting for this series, he would consistently refer to the latest reports on the collapse of the planetary biosphere. The Club of Rome’s Limits to Growth, alongside EO Wilson’s classic call-to-arms Half-Earth, had in every sense become the articulation of his personal True North.

But again, as detailed in part I of the series, Daniel’s objectives were way more than rhetorical. In 2001, a full 15 years before Wilson would begin to parlay his bestseller into the “Half-Earth Project” — a global initiative to safeguard the planet’s biodiversity by protecting vast tracts of land and sea — Daniel was in touch with the Peace Parks Foundation, driving the effort to conceptualise and create Africa’s seventh Transfrontier Park.

The strategy was to unite his private reserve, Nkomazi Wilderness, with the surrounding reserves to form the Greater Barberton Mountainlands Conservancy. In the early years, the Mpumalanga provincial government appeared to back the project; there were even planning studies that linked Nkomazi through a system of corridors to the Kruger National Park, with the Malolotja Nature Reserve in Swaziland eager to sign on.

It wasn’t long, however, before the culture of corruption that drove the land claims scam had seeped into the parks agency. And on this point, Daniel was sitting on more than enough evidence to show the North Gauteng High Court why the damage to Mpumalanga’s biodiversity had been province-wide.

In 2007, when it was plainly apparent to Daniel that the Mpumalanga Tourism and Parks Agency (MTPA) would do everything they could to derail his vision for Nkomazi Wilderness and the broader Barberton Mountainlands biome, he commissioned an investigative report from a Cape Town-based consultant by the name of Dick Wensing. Although he was located on the other side of the country, Wensing’s resumé made him perfect for the job — in 2001, he had been hired to assist with the commercialisation of the agency, a task that he had found nigh impossible due to the fact that “the organisation did not take kindly to the possibility of change.”

Seven years later, instead of transformation in the direction of cooperation with the private sector, Wensing would discover that the MTPA had declared an all-out war on the province’s private operators. After detailing the land claims saga and the history of the denial of permit applications faced by Nkomazi Wilderness, which at the time had an investment value of R250-million with a further R1-billion earmarked for “the next several years,” he sent Daniel a series of “private and confidential” notes that took in the wider context.

One of these notes considered the case of Johan Moller, who, along with his father Koos, had sold 5,000 head of livestock to raise funds for the conversion of their 18,000-hectare cattle farm into the Igwala Gwala conservancy. In the mid-2000s, Moller informed Wensing, when the MTPA were having trouble paying their own salaries, a team from the agency’s game capture unit had slipped through the gates of Igwala Gwala uninvited.

“It started when I got a phone call,” Moller explained, “saying they urgently needed to take off animals, specifically rhinoceros… to pay for the [MTPA] salaries. I declined.”

According to Moller, after the team had “illegally removed” the rhinos and taken “three additional animals,” he had confronted them — “at one stage it was so bitter that pistols were drawn,” he said. Allegedly, Moller was then informed by members of the unit that the agency operated “above the ordinance” and that they “would not be dictated to by private business.”

Next, Wensing’s addendum on the Moller case stated the following: “To reinforce their point, they ruthlessly and mindlessly shot all his lion, his elephant and unlawfully removed rhinoceros.”

Of course, if this was a standalone story, it would have demanded a requisite level of authentication. But given that Wensing’s notes on the matter were peppered with the presence of Jan Muller, who at the time was operating an illegal “problem animal” fund within the MTPA — as described in the second part of this series — the story appeared to add up. Also, there was the fact, included by Rehana Rossouw in her book Predator Politics: Mabuza, Fred Daniel and the Great Land Scam, that Muller had confessed his wrongdoings to forensic investigator Paul O’Sullivan in 2017.

(When invited to comment for this series, Muller told Daily Maverick that his counsel had advised him to decline)

What Rossouw had not included in her book were any of Wensing’s “private and confidential” notes to Daniel, and so there was no mention of Moller’s run-in with the MTPA In Predator Politics, nor of the fact that after the saga he had been forced to abandon his dream. Neither was there any mention in the book of Simon Rufus, whose commercial horse-riding concession in the Songimvelo Game Reserve had met a similar fate.

Rufus, it appeared, had crashed into the MTPA’s ploy to transform large swathes of the national park into cattle pastures and dagga fields. Almost every other week, he told Wensing, he would “notice new cattle with new brands arriving.” In his summary of the situation, he referred to the South African government’s stipulations regarding “protected areas under land claim” — such areas, he correctly noted, could not be used for any purpose aside from nature conservation. And yet, he said, the Songimvelo cattle herders would “on occasion chase [the horse riders] out of the reserve.”

Which aligned, in turn, with the recollections of senior staff at the parks agency, one of whom told Wensing that land claims, in the months prior to the March 2008 cut-off date, had been “popping out of the woodwork for every piece of land owned by the MTPA.” This particular staffer, who held the title of general manager for commercialisation, recalled how very few of the claims had been adequately verified. He further recalled how “almost all claims” had been awarded with the right to work the land.

For Songimvelo, whose siSwati name means “we are conserving nature,” this would result, according to news reports, in cattle outnumbering wildlife by 2011. The damage would continue throughout the decade, as evidenced in the so-called “Songimvelo Syndicate” running guns through Swaziland and employing gangs of illegal gold miners, or in the 2019 discovery and destruction of dagga plantations worth more than R21-million.

But if there was an underlying tragedy behind the demise of Songimvelo, it was that Daniel himself once had big ambitions for the 49,000-hectare reserve.

In the affidavit that he would submit to the North Gauteng High Court in May 2011, Bruce Hutchison, the former vice-president of the Kerzner Group’s Africa Operations, would state the following:

“I saw an opportunity for Songimvelo and Nkomazi to be joined in order to create a unique and viable wildlife area, just south of the Kruger National Park, that would fit perfectly with [Sol] Kerzner’s vision.”

Kerzner had personally given the go-ahead for the project in August 2003, Hutchison testified, following which a meeting had been set up with the parks agency. But the agency’s former CEO, Abe Sibiya, had insisted that he would not sit in a room with Daniel — instead, he had invited the regional land claims commissioner.

“Why he did so remains a mystery,” Hutchison added, “because the land claims were not relevant to the business under discussion.”

In mid-November 2020, Daily Maverick was sent a memorandum in which Daniel’s advocate, Jacques Joubert, asserted that Deputy President Mabuza had abused his position of power to deny the plaintiffs their section 34 right to “a fair public hearing”. The memo, which ran to dozens of points over six pages, was a detailed summary of the defendants’ alleged obstructionism in Case Number 34802/2010 of the North Gauteng High Court. Whatever the allegations, however, the facts had been recorded in the judicial record and were therefore beyond dispute.

It all kicked off during a pre-trial meeting in April 2018, when it was decided that the merits of the case would be separated from the quantum, with the former requiring an estimated 25 court days to be adjudicated. On 28 May 2019, the deputy judge president issued a directive to enrol the case on a preferential basis for 25 court days, from 27 July to 28 August 2020. Then, on 18 February 2020, Acting DJP Potterill, “upon request of the plaintiffs and without objections from the defendants,” issued a further directive to reinstate judicial case management — defined in the legal dictionary as a “proactive approach” that seeks to avoid a process “which requires or relies upon reaction.”

Importantly, at the above meeting, the state attorney also informed the parties that Mike Hellens (SC) would replace Andre Ferreira (SC) as counsel for Mabuza in his personal capacity. Hellens, as everyone in the room would have known, had previously represented former president Jacob Zuma and his son Duduzane — which was doubly poignant given that Mabuza was not in fact the current seventh defendant, listed on the court papers as the Mpumalanga MEC for agriculture and land affairs (a position, as above, that Mabuza had held in 2008 and 2009).

Seven days later, the so-called seventh defendant, along with the first and fourth defendants — the MTPA and the Mpumalanga regional land claims commissioner, respectively — brought an application for discovery of a confidential document, a reactive request that ran contrary to the agreed-to principles of case management.

“They threatened that the confidential document would dispose of the entire claim and result in a devastating punitive cost order against the plaintiffs,” Joubert noted in his memo, before adding: “Nothing came from the threat after the plaintiffs discovered the document.”

And yet, on 15 May 2020, the first, fourth and seventh defendants — again ignoring the directive for judicial case management — served a 108-page “request for further particulars” on the plaintiffs, while escalating the threat of a punitive cost order.

For the next six weeks, with the trial date looming, the plaintiffs scrambled to deliver these further particulars, finally submitting the document on 25 June. On 1 July, with the Covid-19 lockdown in full swing, Justice Molefe (the trial judge) hosted the parties on Microsoft Teams for the first case management meeting — she proposed during the meeting that the trial be held virtually, with every effort made to shorten its duration.

On 18 July, nine days before the trial was set to begin, the state attorney copied the judge on a letter to the plaintiffs’ attorney, which had been written on behalf of the seventh defendant. Deputy President Mabuza would likely appeal any decision for a trial of this “magnitude” to be conducted virtually, the letter warned. Two days after that, Mabuza discovered his leadership position in land reform and restitution in the office of the presidency — “the purpose,” according to Joubert, “was to promote the idea that the case was political and for that reason required double the originally allocated 25 court days.”

Perhaps cognisant of the cost implications for Daniel and the South African taxpayer, Justice Molefe suggested on 22 July that the case be postponed — the first week of the trial could instead be used for case management, she proposed, with the parties attempting to reduce the number of witnesses. Although there were no objections to this from the defendants, the very next day the state attorney sent another letter “in which he not only expanded his clients’ witness list but also threatened if the plaintiffs reduced their witness list, his clients would consider adding plaintiffs’ witnesses to their list.”

And so, it seemed, the squeeze was on, with absurdities piling atop absurdities. During case management, Advocate Hellens (echoing Jan Muller, as per Charles Ndabeni’s affidavit in piece II), would attempt to cast the matter in broad political terms, framing Daniel as a racist who did not understand the complexities of land reform. To add insult to injury, the first, fourth and seventh defendants would refuse to admit that the plaintiffs actually existed — they would dispute that Daniel owned the land in question, despite the fact that the Mpumalanga regional land claims commissioner (the office of the fourth defendant himself) had gazetted the properties in 2004.

By the end of July 2020, with no indication that the parties would be able to curtail the duration of the trial, Justice Molefe postponed the case sine die — meaning that no date was assigned for its rescheduling. It would take until November 2020 for the new date and duration to be discussed, at a case management meeting that neither Hellens nor the state attorney attended. When the new date of 19 July 2021 was finally proclaimed by the Acting DJP of the North Gauteng high court, its duration was set at a mammoth 39 days.

“The 39 days is ridiculous,” said Daniel, during a telephone interview with Daily Maverick in mid-November 2020. “Because if we have our 25 days and we can’t prove the case, why the fuck do they need 39 days?”

His anger was understandable, particularly in light of the rules of the High Court, which stipulated that plaintiffs in a civil matter had to secure counsel’s fees for the entire duration of the trial. At R60,000 per day for senior and junior counsel, this meant that the plaintiffs in Case Number 34802/2010 would now have to fund (in advance) fees of R2.34-million, with indirect costs of around R7-million. And this was disregarding the 40 court actions that Daniel had successfully brought against the state since 2005, which had demanded a combined outlay of R20-million, although some of it had been repaid by the South African taxpayer.

On this point, clearly, Deputy President Mabuza would spare no expense. His denial of the allegations had been laid out in the only affidavit he had ever submitted to the North Gauteng high court, in March 2011, when he was the premier of Mpumalanga Province.

“[Daniel] is a businessman who allegedly invested millions in developing the Nkomazi Project,” Mabuza testified. “His main concern centres around the ‘land claims issue’. That issue was fully investigated and reported on. It was also fully ventilated in the Land Claims Court.”

But there had been no “full investigation” of the issue that Daily Maverick could locate, other than the forensic audits conducted by Ernst & Young, Derrick Griffiths of the Institute of Valuers and private investigator Paul O’Sullivan, which had all concluded that the land claims scam was real. Neither could Daily Maverick find any evidence that the Land Claims Court had ventilated the matter. By all accounts, Case Number 34802/2010 would be the first time that senior politicians would have to answer for the scam, which was why, presumably, the defendants were ignoring the directives of the judge.

And yet Daniel, as ever, was standing firm. Together with his long-time business partner John Allen and his advocate Joubert, he was dealing with each obstacle as it arose. In the 23 years since he had begun to buy up farm plots in the Barberton Mountainlands, he had never once lost sight of his vision. Against the spectre of planetary collapse, everything else seemed incidental — including the fact that he had developed a reputation as one of the bravest whistle-blowers in the country.

“This court case is about the much bigger impacts of state capture, we are so bloody out of touch in South Africa,” he told Daily Maverick. “There’s a global ecological crisis, for God’s sake, and corruption is the source of it, no question.”

The court case, then, was equally about the way through. Daniel had seen with his own eyes how quickly a degraded ecosystem could be regenerated; now, with the national attention he had garnered, he was hoping that the rest of us would see it too.