Johannesburg - South African attorney and politician Mathews Phosa want local businessman Hector Kunene to be denied entry into Malonjeni coal mining, and his attorneys to be charged with misconduct.
This was after Kunene violated his bail conditions by visiting the mine in KwaZulu-Natal, which is now owned by Transasia, and flew a drone into the premises to gather information.
Phosa said this violated the company's rights to privacy.
Kunene was arrested in 2021after he allegedly stole R14 million from Transasia. This was after Transasia, owned by Luda Royblat, and Phosa’s 11 Miles Investment entered into a Sale of Prospecting Rights Agreement with Umsobomvu Coal, which is owned by Kunene, in 2012.
Kunene’s company, as the holder of four prospecting rights, was to permit Transasia to take carriage of any applications pending in the Department of Mineral Resources (DMR) under section 11 (1) of the Mineral and Petroleum Resources Development Act of 2002 (MPRDA) or for the grant of mining, as agreed.
Kunene was obliged to submit the application, but after having received R14 million he failed from Transasia, he failed to do so and created blockages for Transasia – allegedly with the help of public servants, who included DMR officials, the police, and state attorneys.
Transasia was entitled to the transferred mining rights for both the Malonjeni and Cambrian mining projects, in which they invested with a 0% contribution for Kunene. Following Kunene’s failure to submit the application, Phosa reported a case of fraud against Kunene. He was arrested on August 30, 2021, and was released on R30 000 bail.
Among the conditions given to Kunene was that he should not interfere with the witnesses.
Phosa said Kunene’s visit to the premises violated the bail conditions imposed against him. He said this was done to unlawfully gather information for ENSafrica, which represents Kunene and his Umsobomvu.
Phosa said Kunene visited the premises on July 26, 2022. He said a criminal case against Kunene was opened at Dundee Police Station.
“The investigating officer later informed me that he had applied and obtained a warrant of arrest which was duly authorised by a magistrate at Palm Ridge Court and that he will locate Kunene so that the matter can be argued in order to revoke his bail,” Phosa said.
He said this never happened as members of law enforcement were protecting Kunene. Phosa said he was informed on September 1 that Kunene presented himself to court without the investigating officer’s knowledge.
Phosa said, as a result, the inquiry into the revocation of bail was not heard because the prosecutor who was assigned was also not aware.
“The accused (Kunene) and his attorneys (ENSAfrica) then procured a separate prosecutor (without notifying the prosecutor seized with the matter who was in court dealing with a separate matter) and then proceeded to enroll the matter on the court roll, and called the matter in the absence of the prosecutor seized with the matter and accessed the docket.
“By agreement, alternatively, with no opposition, from the prosecutor, they appointed to now deal with the matter, obtained an order that the warrant is cancelled,” Phosa said.
Phosa said the actions of the court staff and prosecutor who allowed this sequence of events were unlawful and in favour of Kunene. He said this was in contravention of the provisions of Section 3 of the Prevention and Combatting of Corrupt Activities Act 2004, which is the general definition of corruption as well as those of Section 4 of the same ACT.
The matter is currently before the High Court in Pietermaritzburg.
Phosa told the High Court to protect Transasia against Kunene and ENSAfrica.
“Accordingly the applicants are compelled to seek relief against ENSAfrica to prevent them from committing the said unlawful actions again, whether unilaterally or in unison with Umsobomvu and Kunene. Transasia and the community are deserving of protection against not only the actions of Umsobomvu and Kunene, but also against ENSAfrica who appear to have embarked on a path of unlawfulness (at least in this matter) to achieve some goal set by their clients, or perhaps a common goal,” he said.
Phosa said ENSAfrica and Kunene were likely to repeat the same unlawful conduct in the future.
The former Mpumalanga premier said the actions violate their rights.
In its reply to the complaint, ENSAfrica’s Boitumelo Modubu said Phosa was trying to intimidate the law firm not performing its professional responsibilities in representing Umsobomvu in its dispute against Transasia.
“I deny that either ENSAfrica, or any other respondent, has acted in an unlawful manner or breached any laws. At all material times, ENSAfrica acted in good faith, in pursuit of a legitimate object, in the best interest of our client, Umsobomvu, and on the advice of council, including senior council,” she said.
Phosa also demands that ENSAfrica pay him R35 million for damaging his reputation and defaming him. This was after ENSAfrica accused Phosa of providing false documents and fake signatures for the deeds of cession of the mining right.
ENSafrica said Kunene did not sign the document and that what purports to be his signature was actually not. “The false version suggests that he signed the power of attorney before any witness. Also, his alleged signature in the false version is in a different place to his signature in the true version.”
In response through the Hammond-Smith attorneys, Phosa demanded that ENSAfrica and its client, Umsobomvu, issue a written apology and a formal retraction of the defamatory statements by no later than tomorrow (Monday - October 31, 2022). Phosa said he would demand payment of R35 million as compensation for damages caused, should ENSAfrica fail to meet his deadline.