KZN judges may testify in fraud caseComment on this story
KwaZulu-Natal Judge President Chiman Patel wants a case involving allegations of fraud, conspiracy and forgery to come to a head and has set the matter down for trial which may see two local judges being called to testify.
The hearing will take place over two weeks in August when Judges Sharmaine Balton and Trevor Gorven may be called as witnesses to testify about their involvement in a case brought by businessman Ian Brakspear.
The case made headlines after Brakspear brought an application to have two court orders authorising the liquidation of his company, West Dune Properties, declared “null and void”.
Brakspear says as a result of the “illegal” liquidation, liquidators sold his wine farm Klein Normandie to business mogul Johann Rupert for R25.2 million, and he wants it back.
The liquidation application was brought by Fairbairn Trust Ltd, now called Nedgroup - a subsidiary of Nedbank Group Ltd - because West Dune was unable to pay its debts.
Brakspear alleges that provisional and final orders, granted by the Durban High Court in December 2008 and February 2009 respectively, were forged and there was possible collusion between his attorney, Fiona Scott, and attorney Leonard Katz of firm Edward Nathan Sonnenbergs (ENS), who represented Fairbairn.
Scott and Katz have denied any collusion in court papers.
Brakspear said Lieutenant-Colonel Vusi Mbhele, of the Hawks, was investigating the alleged fraud and had taken affidavits from two registrars, who stated that they did not sign the court orders.
A senior court registrar also apparently stated that the court orders were not typed in the right format, the court file was missing and there was no record of the matter being dealt with by Judge Balton in 2008.
Sources close to Judge Patel said he wanted the matter to be resolved. He recently called a meeting, in open court, of all those involved to discuss the way forward.
It was agreed to set down the hearing from August 11 in the Durban High Court.
A judge has not yet been allocated to preside, but it is believed Judge Patel is seeking someone from another province, in case the judges have to testify.
It is believed that should Brakspear wish to call the judges, he will first have to get permission from Judge Patel, which he may or may not grant depending on the evidence submitted during the hearing and if he deems it necessary.
It is also believed that Scott, advocate Sydney Alberts, who had been instructed by Scott in the matter, and Katz could be called as witnesses.
An advocate, who cannot be named because of the rules of the profession, said Judge Patel was taking the right course of action.
“Everyone involved should come to court, have their say and the truth will come out.”
In court papers, Scott and Katz deny any collusion.
Scott said she had been in constant contact with Brakspear by phone when the first order was granted and he had not raised an objection.
She withdrew as Brakspear’s attorney in 2010 after he had been “erratic, abusive and unstable”.
Katz, a director of ENS, has also denied any allegations of collusion or forgery.
Katz said there was no recording because it was heard in Judge Balton’s chambers and Alberts was present when the order was granted.
He said he was in court when Judge Gorven made the order final.