Durban - Durban North businessman Ian Brakspear, who claimed his Cape wine farm had been “stolen” from him through rogue lawyers and forged court orders, has been labelled “unbalanced and irrational” by a judge who has dismissed his claims entirely.
Brakspear’s “wild, probably defamatory allegations” - widely publicised in the media - were “preposterous” and character assassinations, Judge Frans Kgomo said, clearing of any wrongdoing all the bankers and lawyers, including Durban attorney Fiona Scott and advocate Sydney Albert, he had implicated.
The judge was appointed by KZN Judge President Chiman Patel to deal once and for all with Brakspear’s allegations that his company, West Dune Properties, did not owe the Fairbairn Trust (now Nedgroup) any money and that an interim liquidation order granted on December 23, 2008 was forged.
Brakspear claimed he had instructed his lawyers to oppose the provisional winding-up application, that the matter was not on the court roll, that the court order was not in the usual format and the registrar’s signature was forged.
He claimed the final winding-up order, granted by another judge two months later, could not be valid if the interim order was a forgery.
The judge, in his 110 page ruling handed down on Monday, found:
* West Dunes Properties - the owner of the farm - was insolvent and owed R7 million to Fairbairn.
* The farm had already been sold in a sale of execution for R18m to satisfy debt.
* Brakspear, Scott and Alberts had agreed to file an opposing affidavit in the liquidation but to allow a provisional order to be granted because, strategically, the liquidators could cancel the R18m sale and sell the farm to Anton Rupert, who was willing to pay R25m.
* The matter was heard in Judge Sharmain Balton’s chambers and the attorneys drafted an order which was approved by the judge and signed by the registrar.
* The registrar testified that she had given an “enlarged” sample of her signature and thought it was not hers, but on closer inspection, she believed it was.
* Brakspear flew to Cape Town with Scott, Alberts and the provisional liquidators to attend to the deal with Rupert and he never once expressed “shock or horror” at the liquidation, instead being “overjoyed at the higher purchase price”.
* Brakspear supported the liquidators when they approached the court to cancel the sale-in-execution deal.
* The handwriting expert had questionable qualifications and could not state that this order had been forged.
The judge said: “Brakspear’s allegations of impropriety, fraud and fictitiousness are wild, reckless, unsubstantiated and unsubstantiable.
“He understood he was making these damaging allegations at a time when he did not have an understanding of court processes. And he was forced to concede when shown evidence at this hearing that the orders granted were done so in terms of accepted processes.”
He said Brakspear was also “painfully made” to retract his allegations against (Nedgroup) attorney Leonard Katz - the main focus of his attack.
“
He confirmed that it was his life’s mission to bring about the downfall of Mr Katz,” the judge said, noting that as part of this vendetta he had used Noseweek, edited by his friend and adviser at court Martin Welz, as a platform “to publish allegations which may amount to criminal defamation unless proven to be true or in the public interest”.
Judge Kgomo ordered that Brakspear pay the costs of the application.
He said he would remain in Durban for two days in case Brakspear needed any clarity or wished to apply for leave to appeal against his ruling. He said, however, that Judge Patel had done all possible to assist Brakspear in preparing for the trial and he personally had taken extra care to ensure he was not prejudiced during the trial.
“It is thus my finding that he cannot claim to have been prejudiced or disadvantaged,” the Judge said.
The Mercury