Cape Town - Serious allegations of aggression, hostility, and even a death threat, have marred the multibillion-rand sale of the V&A Waterfront.
The details have emerged in legal documents that are part of a pending court battle, which sees two of the main players in the R9.7 billion deal at one another’s throats over a multi-million-rand so-called “facilitation fee”.
On one side is Maurice Shawzin, one of the men who formed the now dissolved partnership that brokered the deal. In his corner is liquidator André van Heerden, appointed to recover Shawzin’s fee.
On the other side is Growthpoint Properties, which bought the Waterfront two years ago in what is considered the most expensive property deal in South Africa’s history. At the time, Shawzin was in partnership with property mogul Neill Bernstein.
Van Heerden has now instituted an action against Growthpoint for the recovery of the fee. This comes two years after the deal was struck. At that time, Shawzin claimed he was still owed the fee – which led to the dissolution of his partnership with Bernstein, after the High Court ruled in his favour in a dispute with Bernstein’s company, Devland Holdings.
In terms of the court order, Van Heerden was appointed to pursue the facilitation fee.
Now, however, Van Heerden claims his efforts to prepare for the legal action to recover the fee are being hampered by that soured relationship between Shawzin and Bernstein. Van Heerden also accuses Bernstein of colluding with Growthpoint to stifle his pre-trial preparations.
This week, about two months before the main action is scheduled to go to court, he asked the Western Cape High Court to intervene urgently. He claims that Growthpoint has refused to comply with subpoenas to produce evidence he needs for the main action.
Among the evidence Van Heerden says he needs are letters, diary entries and meeting notes of Growthpoint’s chairman, Francois Marais, chief executive Norbert Sasse, and executive director Estienne de Klerk.
In addition, he wants the records of the internal communications between Sasse and De Klerk.
Sasse and De Klerk have not opposed the application, but Marais has described it as an abuse of process.
Meanwhile, Van Heerden’s affidavit painted a picture of the ugly tension between the two former partners, Bernstein and Shawzin.
He claimed their relationship had become so hostile that, about two months ago, Bernstein threatened to kill Shawzin if he jeopardised his relationship with Growthpoint – an allegation Bernstein has vehemently denied.
The incident, according to Van Heerden, occurred at the security desk of the plush Marina Residential Apartments at the Waterfront, where Shawzin lives.
He alleged Bernstein threatened Shawzin over the intercom phone when he was prevented from entering the complex.
“He was loud and abusive to him, and stated that if he did anything which destroyed his relationship with Growthpoint, he would kill Shawzin,” Van Heerden said.
In a separate affidavit, security guard Quinton Samuels said Bernstein arrived at the complex and attempted to gain access to Shawzin’s apartment, claiming he was Shawzin’s son.
While he said Bernstein was aggressive, he did not specifically say Bernstein threatened Shawzin.
When contacted by Weekend Argus for his response to the allegations, Bernstein said he wanted to place on record his “utter denial” that he had made any threats to Shawzin.
“My attempt to visit his apartment at (the Waterfront) was in an attempt to collect a valuable painting that has been in Mr Shawzin’s apartment since June 2011, when I last saw (him),” he said.
Van Heerden alleged further that a transcript of a portion of a pre-arbitration meeting in December 2011, in which Bernstein asked that Shawzin be excused, suggested that Growthpoint induced Bernstein to ensure that Shawzin withdraw or abandon the claim in the main action.
Van Heerden submitted that there was no legal basis for Growthpoint’s refusal to comply with the subpoenas.
He asked the court to grant him an order compelling Growthpoint to produce the evidence he required.
The main action is set down for February.
In an opposing affidavit, however, Growthpoint’s Marais described the subpoenas as over-broad.
He denied they were aimed at procuring evidence relevant to the action.
They were rather an abuse of process, Marais said, and had been issued to harass them and “make our lives unpleasant with the aim of securing a commercial settlement in the action”.
Marais also denied he colluded with Bernstein, or that Growthpoint intended to stifle Shawzin’s claim.
According to Marais, at the December 2011 pre-arbitration meeting, Bernstein had proposed a settlement and, once he had made his representations, Growthpoint gave him an opportunity to discuss it with Shawzin in order to get Shawzin’s “buy-in”.
Marais also said he had no knowledge of the allegations relating to the death threat.
He added that there was no connection between “Bernstein’s apparent hostility” and any of Growthpoint’s conduct.
When the case went to court on Thursday, Brian Pincus SC, for Van Heerden, submitted that compliance with the subpoenas was crucial.
He added that Marais’s allegation that the application was an abuse of process was aimed at justifying non-compliance with the subpoena.
Marais has, however, denied being in possession of the documents in question.
He also could not produce his diary entries because his diaries contained confidential information on matters unrelated to the Growthpoint issue, he said.
Judge Dennis Davis, however, said Marais entered into settlement negotiations on behalf of Growthpoint, and that he found it “extraordinary” that he did not have any documents in his possession during those negotiations.
Judgment will be given on Monday.