Two court dramas: a curious judgment in one, belated justice in another
On 20 October I received an email regarding the Brakspear case from Leonard Katz (who readers know is a senior partner and liquidation expert at attorneys Edward Nathan Sonnenbergs – ENS for short). It reads:
I attach an email which I sent to my colleagues earlier today. The court has shredded your pretensions to be an independent investigative journalist. You are a vindictive and unpleasant man.
The next communication from me will be delivered by the sheriff.
With apologies to Bruce Willis, yippie-kai-yay, Martin Welz!*
Some extracts from the attached email that Katz had sent to his colleagues:
I am pleased to advise that Brakspear’s application for an order setting aside the provisional order for the winding up of West Dunes Properties 5 (Pty) Ltd (in liquidation) was dismissed with costs in the Durban High Court by Judge N F Kgomo.
The judgment runs to 111 pages. I quote certain portions:
“…The entirety of [Brakspear’s] founding affidavit is a rambling, incoherent and mostly incomprehensible document littered with assassinated characters of prominent attorneys, advocates and other people...”.
“When shown documents contradicting his version and written by himself, [Brakspear] started denying the signatures as his. When the heat of cross-examination intensified, he changed to state that the signature looks like his although he does not remember the occasions he did append them to such documents. At long last he conceded that all those signatures were his.
“For instance, he was referred to an article published in the 13 February 2014 edition of the tabloid [sic], 'Noseweek' in which all the adjectives, language, accusations and allegations of fraud, fictitiousness [and] non-existent court orders are crafted in the same style as the applicant’s founding affidavit and heads of argument.
“The applicant acknowledged knowledge of the article as well as the fact that he indeed did give information about the liquidation application to its editor, a Mr Welz.
“To add fat to the fire, the Noseweek journalist who ‘baby-sat’ the story in the tabloid introduced himself to me in chambers on the first day I met counsel and the applicant, as the applicant’s friend and advisor. He also asked for leave to sit next to the applicant in court to assist with tips as the trial progressed.
“I am persuaded and satisfied that West Dunes Investments’ provisional and final winding-up orders were granted by judges of this Court in the presence of the applicant’s legal representatives. Therefore his allegations of impropriety, fraud and fictitiousness are just that – wild, reckless, unsubstantiated and unsubstantiable allegations.
“The applicant was also made to painfully retract his allegations that Mr Katz was the man who organised the procurement of a forged signature on the court order of 23 December 2008.
“He also admitted that the articles concerning the actors in this case written and appearing in Noseweek were based on incorrect, untruthful and contumacious stories that are not only baseless but also very damaging.”
On another day and under different circumstances I might have been just a bit rattled by all of that. But I know that Noseweek’s earlier stories on the subject were squarely based on the evidence quoted in them. I also know that several of the judge’s statements quoted here are either half-truths, or simply nonsense. For a start, that article that the judge describes as having appeared in the 13 February, 2014 edition of “that tabloid” Noseweek,was not written by me and did not appear in Noseweek. It was written by
Ciaran Ryan and published online at news.acts.co.za. Nowhere in the trial transcript are these passages put to Brakspear for his comment.
On page 87 of his judgment, Judge Kgomo says: “It emerged during the leading of evidence herein that both the applicant Mr Brakspear and Mr Welz are Zimbabwean expatriates and that both… worked towards one central goal: to assist the applicant’s other family members… to relocate permanently to South Africa. The modus operandi was to purchase Klein Normandy…”
It most definitely did not emerge in evidence. Where else might Judge Kgomo have got this from?
As it happens, I am not a Zimbabwean expatriate and had never heard of Mr Brakspear until I started researching this case. I also had nothing whatsoever to do with plans for the relocation of the Brakspear family. According to the evidence led in court, Mr Katz’s clients in the Nedbank Group were involved in such plans to facilitate the emigration to South Africa of Brakspear’s relations.
Some of Judge Kgomo’s most damning findings are not supported by the documentary evidence or the official transcript of the ten-day hearing. I also know that after independently studying the record and documents, an eminent senior advocate has seen fit to take it on
There are undoubtedly many parts of the court evidence that should be reported in Noseweek. And if fault is to be found with the judgment, it must be clearly demonstrated. But, as the judge has observed, to separate the wheat from the chaff in thousands of pages of dense, often very technical documents, several hundreds of pages of court transcript and a 110-page judgment is a massive task which I have yet to complete.
* Willis actually said, “Yippie-kai-yay, motherfucker!” For your further enjoyment, go to www.youtube.com/watch?v=4XEaeOxqy_4
Some news to cheer us up: in January 2012 Noseweek took on an even bigger target than Africa’s largest law firm. In that cover story we exposed the crooks at Coca-Cola who, if you can believe it, are bigger bullies and have even more money than the men at ENS. (Only joking.)
In 2001 Coke belatedly started planning to enter the natural fruit juice and bottled water markets. To speed up plans, so it was said, they were keen on sponsoring an outsider to set up the appropriate water bottling plant. Their choice fell on Erich Schravesande, owner of Webs Trading, one of their most dynamic and successful distributors. Encouraged by Coke’s promises of guaranteed orders for several years, Schravesande raised a substantial sum, bought the farm Chantilly with a suitable spring, and hastily erected a plant that met Coca-Cola’s exacting standards. Only to have Coke change their mind. Or maybe they’d just used him as leverage to rush Appletiser into selling out their fruit and water plants and trademarks to Coke.
Then the men at Coke set about financially and legally disabling Schravesande to make sure he would not come back at them for damages – which they had every reason to believe would amount to many millions and lose a few executives their jobs.
The then-MD of Coca-Cola Canners of SA, Islay Rhind, instructed his staff to fake an invoice in terms of which Schravesande’s distributorship, Webs Trading based in KwaZulu-Natal, ostensibly owed Coke R7.5 million, enough to bankrupt Webs if true. At roughly the same time Rhind also falsely accused Schravesande of having bribed one of Coke’s employees. He claimed the evidence had been produced at a disciplinary hearing, and threatened to call in the police – unless Schravesande went quietly. He cut off Webs’ supply of Coke.
In December 2002 a Coke executive was sent to Durban to negotiate a settlement deal. The draft read: “Without in any way admitting liability for any claim which Chantilly may have... arising from any agreement, whether express, tacit, or implied... CCCSA shall pay to Chantilly an amount of R262,421.88... in full and final settlement of any claims which Chantilly may have against CCCSA and or TCCC (The Coca-Cola Company of Atlanta) arising out of the [water bottling] arrangement.”
Schravesande stood his ground – and refused to sign the offer.
On 23 November 2003 Chantilly Water, the company he had set up at Coke’s suggestion, issued summons out of the High Court in Pietermaritzburg against Coca-Cola Canners of SA, claiming R24m in damages. In their plea to the summons, CCCSA denied that a valid agreement had been concluded between them (they claimed Coke SA chairman, Hans Kalten-
brun, had not been authorised to conclude the agreement) and denied liability for the amount claimed.
Eleven years have passed since then and not a single word of evidence has yet been led in court. There have been a dozen postponements over the years, most applied for by Coke’s lawyers.
Webs Trading went into voluntary liquidation on 28 July 2004, and an insolvency inquiry was launched at which Coca-Cola officials were forced to produce many documents and financial records they had hoped to keep secret.
From these it emerged that Coke’s claim to have “absolute proof” that Schravesande had bribed a Coke employee was, in fact, an absolute lie.
Schravesande’s first advocate suggested he should accept a settlement offer of R1.5m. His second advocate, in a written opinion suggested he should accept a figure of R3.5m. Both were fired.
By the time the trial date arrived in June this year, Chantilly Water was represented by Cedric Puckrin SC of the Johannesburg Bar. There was no more talk of cheap settlements.
Three days before the trial, settlement talks began. A third party who was present says that the first offers of R15m and R17.5m were rejected outright within half an hour of one another.
Noseweek’s guess is that Coke ended up paying the full amount claimed.
The settlement agreement was finalised on Thursday 5 June. The case had been set down for hearing on 9 June and was scheduled to last for ten days. The court file only records that a secret settlement was reached.
Coca-Cola’s legal costs are estimated at between R4m and R5m. It has been suggested that this is the largest legal settlement in the history of Coca-Cola (Africa Group).
All that remained to be done was for Noseweek to rub their noses in it.
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