IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO: 34502/2010

In the matter between:

ST
GRAND VALLEY ESTATES (PTY) LTD 1 PLAINTIFF

ND TH
AND 11 OTHERS 2 TO 12 PLAINTIFFS

and

ST
MPUMALANGA TOURISM AND PARKS AGENCY 1 DEFENDANT
ND TH
AND 24 OTHERS 2 TO 25 DEFENDANTS

PLAINTIFFS' WRITTEN SUBMISSIONS

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 outstanding
judicial directives:

1.1 To provide the witnesses' names, they intend to call in support of their special pleas.

1.2 To admit or deny the identities of the plaintiffs referred to in paragraphs 1 - 12 of the
POC;

1.3 To admit or deny the description of the properties referred to in paragraphs 41 - 42 of

the POC;

1.4 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:

3.1 The re-enrolment of the trial on a preferential basis for 10 or 15 days in the first term
of 2021;

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 3.2 A directive that the parties deliver witness summaries by 30 November 2020 of the
broad terms and nature of their witnesses' evidence.[1]

4 The plaintiffs sued various Mpumalanga government entities, their employees, and the
MEC for Land Affairs and Agriculture in 2010 for damages suffered due to corruption-
related harassment in Mpumalanga.

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.

8 Mr. Vusi Shongwe is the current MEC.

9 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.

11 The plaintiffs addressed a letter to DJP Ledwaba on 1 August 2018 to request a judicial
case manager's appointment and a special allocation of trial dates.

12 On 11 December 2018, during a meeting with the appointed judicial case manager,
Molefe J, it was agreed by the parties and certified that:

12.1 The merits and quantum to be adjudicated separately;

12.2 The matter was trial-ready for allocation of a preferential trial date by the Deputy
Judge President; [2] & [3]

12.3 The estimated trial duration was 25 days;[4]

13 On 28 May 2019, acting DJP Raulinga confirmed that:

13.1 There were no outstanding issues-the matter was therefore trial ready;[5]

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 13.2 The estimated trial duration was 25 days.[6]

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 about the number
of witnesses or that the trial's political magnitude would require more than 25 court days
for adjudication.

16 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.

19 At the above meeting, Ferreira informed everyone present:

"Although we represent President Mabuza, he recently indicated that he wants to appoint

Ian Small-Smith with Hellens SC as his legal representatives to further act for him in his
personal capacity."[9]

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.

22 The defendants threatened that the confidential document would dispose of the entire
claim and result in a crippling punitive cost order against the plaintiffs, who are self-
funded litigants.

23 Nothing came from the threat after the plaintiffs discovered the confidential agreement to
avoid a further delay of justice caused by interlocutory proceedings.

24 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
delay justice for the plaintiffs and engineer a postponement of the trial.

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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.

27 On 1 July 2020, the parties met Molefe J at a judicial case-management meeting on

Microsoft Teams. She raised the possibility of the trial being run virtually and proposed
that the parties' experts meet to shorten the trial duration.

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.

29 On 20 July 2020, the seventh defendant discovered his leadership position in land reform
and restitution in the presidency's office.

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.

34 To avoid any further delay caused by interlocutory proceedings, the plaintiffs have
withdrawn their objection to the above Notice of Amendment.

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35 The eight defendants on 20 July 2020 served a Rule 28 (1) Notice of Amendment on the
plaintiffs, including an entirely new special plea of non-joinder;

36 The timing of the above Notice on the eve of a specially allocated high court trial speaks
volumes.

37 The plaintiffs filed an affidavit opposing the above Rule 28 Notice on 2 September 2020.
The eight's defendant two months later has taken no further steps to prosecute the
Notice.

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.

39 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.

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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.

49 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 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.

55 A copy of this letter is enclosed marked Annexure "A."

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.

58 Ferreira also declined to respond to the plaintiffs' question if the fourth defendant admits
its forensic reports on land claim corruption.

59 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. The experts do not need to meet.

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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.

64 Expert evidence's curtailment remains a considerable achievement by the experts and

explains why the plaintiffs now believe only between 10 and 15 days are now necessary
for the trial.

65 The defendants' list of witnesses has always been a bone of contention because the
plaintiffs believe that they inflated their witness list from the outset.

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.

68 The plaintiffs reserved the right to ask for the wasted cost of the postponement of the
trial.

69 On 8 September 2020, the plaintiffs took the unprecedented step to withdraw and tender
costs against 10 of the 25 defendants to remove any further doubts about the trial's
duration.

70 The Deputy President is in control of the litigation, even though he is only a key witness.

71 He is violating his oath of office and abusing his entrusted position of power to prevent a
court from pronouncing on the truth of corruption-related harassment allegations.

72 The first and second 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.

73 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]

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74 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

[1] As is 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.
[6] Para 20 of the minutes of the above CMM.
[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 is envisaged by paragraph 4 of the Judge President's Practice Directive 2 of 2019.