Brakspear trial showcases a broken judicial system
This was no David versus Goliath story. Goliath clubbed an infant half to death. At one point a lady observer in the back row broke down in tears at the treatment meted out to Brakspear by the counsel and the judge. Another observer left the court in disgust. It was raw, at times brutal and, in many ways, pointless.
This report is compiled from the first-hand accounts of several attendees in court.
Brakspear stood four days in the witness stand trying to press his argument that he had been liquidated over a fictitious R7 million loan concocted out of thin air by Fairbairn Private Bank in Jersey, now called Nedgroup (part of Nedcor). He argued that court order used to liquidate his company, West Dunes, was a forgery and his case was never heard in the Durban High Court on 23 December 2008, the day Judge Sharmaine Balton supposedly granted the provisional liquidation order.
For that to have happened, Brakspear says his then attorney Fiona Scott must have conspired with Leonard Katz of Edward Nathan Sonnenberg (ENS), representing Nedgroup, to defraud him. This is denied by the two attorneys and Nedgroup. Brakspear had a problem early on with this point: his own attorney and counsel testified that he disputed the debt, but did not oppose the liquidation – a point Brakspear repeatedly denied.
The court was awash with counsel and attorneys for the bank and the liquidators, showing just how seriously they are taking this case. By some estimates, this case is costing Nedcor north of R1,5 million for the 10 day trial. Brakspear represented himself. Cost: R0, other than six years of anguish and lost income.
The silk earned a good whack of their fees in the first few days of the trial. The bank’s counsel scored something of a coup early on by apparently getting Brakspear to concede that the matter was heard in court, though Brakspear later denied he had made this admission.
“Where is the fraud, Mr, uh, Brakspear?” asked Adv Woodland for the bank. “Why are we here?”
Brakspear tried to explain that the family trust had been reduced by £500,000 at his instruction, and the debt was settled prior to liquidation.
Each time he seemed to be getting his point across, Woodland pressed on with his next question. It didn’t help matters that Judge Kgomo interrupted Brakspear repeatedly. “We already covered this yesterday.”
Brakspear tried to explain his point. That seemed to get the judge’s back up and Brakspear had no idea how to deal with it. There was no loan agreement, argued counsel for the bank, because it was tied up in a series of transactions between various entities, at the centre of which was a guarantee for £500,000 (then worth about R7 million) which allowed West Dunes to raise a mortgage bond from RMB to acquire the Klein Normandie wine farm in Franschoek.
When RMB called up the R7 million guarantee, Brakspear argued it was duly paid out of the family trust. The debt was therefore settled and there was no legitimate claim against him or the trust.
The bank maintained otherwise and brought an application for the liquidation of West Dunes in December 2008. Brakspear insisted he instructed his then attorney Fiona Scott to oppose the liquidation, but she phoned him from court that day to inform him that the case was lost. Brakspear was gobsmacked.
Nedgroup argued that loan came about by way of a “substitution of creditors” and made reference to a series of offshore agreements supposedly written between the Fairbairn companies in Jersey and Guernsey back in 2004. When Brakspear asked to have these agreements authenticated per Rule 63 of the court rules he was again slapped down by the judge. Who gave authorisation to make agreements on behalf of the family, Brakspear wanted to know? It came out that the trustees of the Brakspear family trust, in a bizarre twist of Jersey law, are Nedgroup employees. So he cannot get access to the remaining funds in the family trust to help fight his case – the trustees, part of the same group that liquidated him, control the family funds.
Brakspear was again shut down by the judge when he attempted to show the court these same trustees had committed serious breaches of trust, one of which resulted in the cancellation of an offer of R37,75 million for the wine farm (a Fairbairn executive let on to the buyer that this was a distressed sale, so the buyer promptly cancelled the sale in the hopes of picking it up at auction at a lower price). The farm was then bought at auction for R18 million by Zunaid Moti, which was nearly R20 million less than the previous offer. Brakspear maintains that the bank, fearing a massive damages claim over this breach of trust, decided to liquidate him as a way of solving that problem. The Moti sale was cancelled by the liquidators in favour of a higher offer of R25 million by Johan Rupert, though the legality of this has been hotly contested. In any event, after the sale to Rupert at R25 million, the outstanding bond was just R12 million, so Brakspear felt there should have been a hefty surplus for distribution to creditors. No such luck. After the R7 million claim from Fairbairn Private Bank, plus the lawyers’ fees and some other charges, the plate was licked clean.
When Brakspear attempted to show the court that Nedgroup needed to liquidate West Dunes to silence him, he was again shut down and told to stick to the events of 23 December 2008, the day of the provisional liquidation.
At the end of four days in the witness stand, it looked like his case was all but destroyed.
Botha takes the stand
After lunch on Thursday of the first week, the former chairman of BOE Trust, Nico Botha, took to the stand. Botha authored the affidavit that liquidated West Dunes, but when the Hawks investigated the case they could find no evidence at the time that he was chairman of BOE Trust. In the last few weeks, however, a board resolution materialised apparently authorising his appointment as chairman. Botha stepped up to the stand, stated his name and gave his position as retired chairman of BOE Trust.
Brakspear was about to start cross examining Botha by reading questions from prepared notes when the judge told him to hand over his notes to the opposing counsel. Another bizarre moment. Why wasn’t Brakspear given Woodland’s notes?
The beat-down got worse. Don’t read from your notes, the judge told Brakspear, just ask him (Botha) to tell you what it is you want to know. Brakspear appeared frozen in the headlights but tried to press on with his cross-examination of Botha.
Brakspear questioned Botha on the assertion in his affidavit that he had personal knowledge of the matters contained therein. As Botha started to answer, the judge answered for him. “Next question.”
Brakspear tried to raise the fact that Fairbairn had offshore operations in both Isle of Man and Jersey, both of which are separate legal jurisdictions. “You are referring again to Jersey, it has nothing to do with South Africa,” said the judge. Actually, it did, claims Brakspear, since this is where he says the alleged fraud was cooked up.
The judge’s interventions were so relentless, one got the sense that even the opposing counsel were getting nervous. They were winning the battle, but this was a public hanging.
Brakspear pressed on. He tried to introduce what he called a “manufactured email” used by Botha in his affidavit as evidence of West Dunes’ insolvency. The email he referred to is two pages long, the first of which reads “Page 1 of 3” and the second “Page 2 of 2.” The second page is in a different font type and purports to be written by Brakspear. “But I never wrote it,” he claimed. “It’s a fake.”
The judge was increasingly irritated with Brakspear and asked the relevance of this email. He handed Brakspear his copy of the same email. “There, the page numbers have been tippexed out,” cried Brakspear sensing a fleeting chance of scoring a point when inspecting the judge’s copy. Sniggers from the opposing counsel. On to the next question, please.
So it went on. Brakspear then brought up the fact that the bank repaid an amount of £446,000 into the Brakspear family trust once the liquidation of West Dunes had gone through, claiming this money was the proceeds of an out-performance of the market on a £500,000 account balance. This was an impossibility, claimed Brakspear, as it was well known that world financial markets performed nowhere near these levels in 2008 and 2009.
“Why are we going here?” asked the judge.
“Because there’s fraud and it nullifies every transaction,” said Brakspear.
Brakspear then raised the reference to Section 344 and 345 of the (old) Companies Act in Botha’s affidavit that supposedly gives a creditor 21 days to reply to a letter of demand. Brakspear was liquidated seven days after receiving his letter of demand. “It doesn’t matter,” said the judge, the opposing counsel nodding their heads in agreement.
Then it was time to wrap up proceedings for the day. Judge Kgomo’s mood perked up and his parting advice to Brakspear was to take Botha for a meal and find out from him what it was he wanted to know. Botha was the man whose affidavit was used to shut the Brakspear family down. Now they should break bread together and be nice.
There were so many bizarre elements to this trial it’s hard to know where to begin.
By all accounts it was a bleak weekend. Brakspear says he realised he stood no chance of success if he was prevented from airing his evidence. On Monday he went to see Judge Kgomo and asked for his recusal on the grounds of bias. Kgomo apparently unleashed more fury on Brakspear but then things settled down and it was decided to continue the case. The judge’s demeanour noticeably improved thereafter.
Botha was back in the stand, with Brakspear continuing his cross-examination, asking about the £500,000 loan Botha claimed in his affidavit was outstanding. When Brakspear informed him that the loan had been repaid in July 2008, Botha apparently looked stumped, looking to Katz for rescue. If that’s the case, the entire causa of the liquidation seemingly evaporated. Brakspear pressed the point, asking why it took the bank 18 months to claim a supposedly overdue loan?
Brakspear was beginning to turn the tide. Then the judge returned from a short recess and announced that the case would from thereon focus on the events of 23 December 2008, when provisional liquidation was supposedly granted by Judge Balton.
Brakspear’s former attorney Fiona Scott took the stand, and apparently claimed the matter was heard in Court C of the Durban High Court. If it was heard in open court, there should be a transcript of the proceedings, though none has ever been found. Scott maintained that she followed Brakspear’s instructions in disputing the debt, though she said the liquidation was consented to. This testimony did not illuminate much, and remains a crucial dispute of fact.
However, one legal advisor contacted for comment believes this piece of evidence presented by Scott should kill the entire case, since no judge should grant a provisional liquidation order on a disputed debt. Suddenly, the bank’s case looked a little less assured than it did the previous week.
On Tuesday of the following week, Marga van Rooyen, a former registrar in the Durban High Court, took the stand. She deposed in an affidavit that she recognised her handwriting on the mysterious court order, and that the reason there was no record of the matter in court that day was because it was heard in the judge’s chambers. Nor was it the practice at the time for urgent applications which are dealt with in judges’ chambers to be recorded in the judge’s “bench book.”
But under cross-examination by Brakspear, her story changed and she was unsure whether it was her handwriting. Another point scored by Brakspear.
Then Advocate Sydney Alberts, who was Brakspear’s counsel at the time, took the stand. He, too, confirmed what Scott had testified: that the claim for £500,000 by Nedgroup was disputed, but that the liquidation was not opposed and that he acted on verbal instructions from Scott.
Then it was Katz’s turn. Brakspear asked what was the benefit to creditors of going through all this trouble to reclaim an alleged loan of R7 million when ENS had taken R5,4 million of that in fees. Nervous shuffling in the ranks of the opposition.
By now the judge was talking of taking the matter on review. Clearly, the court is in a tricky spot: if the judge dismisses the case that a forged or irregular court order is valid, he sets a precedent that will surely be shot down in the Constitutional Court. If he decides in favour of Brakspear, Nedgroup is bound to appeal. If Brakspear loses, he will likely appeal. And so the case will go on.
The penultimate day of the trial delivered another bombshell to Brakspear. Bovani Chetty, the court registrar who deposed in an affidavit that the signature on the court order used to liquidate West Dunes was a forgery, changed her mind under cross-examination and decided she wasn’t entirely sure that it was not her signature.
Brakspear had one last chance at salvaging his case. He had to call Yossi Vissoker, the forensic examiner who previously examined the signature on the court order used to liquidate West Dunes. Vissoker had to fly from Joburg to be in court at 10am the next day and miraculously appeared on time. Ms Chetty may have had doubts about the authenticity of her signature, but Vissoker had none: “There is absolutely no possibility that she signed that court order,” said Vossiker afterwards. “Absolutely none.” The opposition questioned him on the fact that he was basing his testimony on a photocopy, not the original, to which he replied he did not need the original. Brakspear’s case looked like it was back on the rails. The court order, it seemed after all, was a forgery.
Then came the closing arguments. The oral testimony illuminated little that was not already known or already disputed. Brakspear was cast by the opposing counsel as irrational, vengeful and incapable of accepting the facts of his own insolvency. But Brakspear scored some powerful points of his own, questioning the benefit to creditors of liquidating West Dunes when a good whack of the surplus went to lawyers; the forged court order remains unanswered; and he had Botha backed into a corner on the matter of alleged debt. The bank's counsel managed to extract several concessions from Brakspear, not least (apparently) that the case was in fact heard in judge’s chambers, and the court heard his own counsel and attorney attest to this fact. He can take comfort from the fact that he emerged with a modicum of dignity, having withstood two weeks at the receiving end of the best that South Africa’s legal system could throw at him.
Whether Nedgroup wins or loses in this case, its reputation will suffer. Its public persona is one of beneficence, yet its legal division compromises that perception (and we are in possession of several cases to substantiate this claim) with cases such as this. Two months ago the Judge President of the Durban High Court decided that Brakspear was to be given every assistance as a lay litigant. There was little evidence of this. The contest was so unequal, the pounding of Brakspear so relentless, that one imagines the Constitutional guarantee of fair administrative justice was written for the people of Outer Mongolia. One shudders to think what what happens when cases such as this take place outside the public spotlight, where the press is not present.
More than anything else, this case throws a much-needed light on a broken judicial system, where forged court orders can be proffered as legal currency (what mercy would be shown to the average South African in possession of a forged driver’s licence, or a counterfeit R100 note?). We have just been entertained by a two week trial attempting to exculpate a fetid court bureaucracy that cannot function as it should and does not know whether court orders are valid or not. In an effort to solve this confusion, we are left with the testimony of partisan rather than independent witnesses. On vagaries such as this, the rights of ordinary South Africans vest. Overseas observers will be looking at this case with a certain alarm.
A final point on the cost of vesting your hopes in the judicial system. Braskpear was out-gunned in virtually every department by the silks. God help those who are liquidated and end up in this position. The message is clear: accept you dispossession and get on with your life as best you can. Unless you can afford expensive counsel, you are doomed. This, I am sure, is not what the Constitution had in mind.