Grand Valley Estates (Pty) Limited and Others v Mpumalanga Tourism & Parks Agency and Others (34502/2010) [2025] ZAGPPHC 1021 (30 September 2025)

IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA CASE NO: 34502/2010 In the matter between: GRAND VALLEY ESTATES (PTY) LIMITED EDGE TO EDGE 17 (PTY) LIMITED MONTVIEW PROPERTIES (PTY) LIMITED MOTIFPROPS 1021 CC CRADLE OF LIFE INVESTMENTS (PTY) LIMITED WILDERNESS CONSERVATION PROJECTS (PTY) LIMITED MOUNTAIN VIEW INVESTMENTS (PTY) LIMITED FREDERICK COENRAAD DANIEL NO HENNING WILLERS NO JOHAN VOORHOVEN NO FREDERICK COENRAAD DANIEL SIMON HUBA (1) REPORTABLE: ¥ES / NO First Plaintiff Second Plaintiff Third Plaintiff Fourth Plaintiff Fifth Plaintiff Sixth Plaintiff Seventh Plaintiff Eighth Plaintiff Ninth Plaintiff Tenth Plaintiff Eleventh Plaintiff Twelfth Plaintiff* (2) OF INTEREST TO OTHER JUDGES: ¥ES / NO and 0-1 0-1 Page 2 MPUMALANGA TOURISM & PARKS AGENCY First Defendant DIRECTOR-GENERAL OF DEPARTMENT OF ENVIRONMENTAL AFFAIRS & TOURISM, NATIONAL GOVERNMENT Second Defendant* MINISTER OF ENVIRONMENTAL AFFAIRS, NATIONAL GOVERNMENT Third Defendant* REGIONAL LAND CLAIMS COMMISSIONER, MPUMALANGA PROVINCE Fourth Defendant NATIONAL COMMISSIONER OF SA POLICE Fifth Defendant DIRECTOR OF DEPARTMENT OF AGRICULTURE & LAND AFFAIRS, MPUMALANGA PROVINCE Sixth Defendant* MEMBER OF EXECUTIVE COUNCIL: DEPARTMENT OF AGRICULTURE & LAND AFFAIRS, MPUMALANGA PROVINCE Seventh Defendant ALBERT LUTHULI MUNICIPALITY Eighth Defendant ABE SIBIYA Ninth Defendant* JAN MULLER Tenth Defendant DRIES PIENAAR Eleventh Defendant* DR DELANIE TIBA Twelfth Defendant* SOLLY MOSIDI Thirteenth defendant ANDRÉ COETZEE Fourteenth Defendant* CHARLES NGOBENI Fifteenth defendant* MAUREEN SITHOLE Sixteenth Defendant* NCEBA NQANA Seventeenth Defendant* HARRY MABOA Eighteenth Defendant LINDA MABATHA Nineteenth Defendant* 0-2 0-2 Page 3 SIBUSISO RADEBE Twentieth Defendant* BONGANI MWALI Twenty-first Defendant* PRO KHOZA Twenty-second Defendant* SUPERINTENDENT PHILLIPUS LOURENS KRITZINGER Twenty-third Defendant DR FERREIRA DU PLESSIS Twenty-fourth Defendant* GREATER BADPLAAS LAND CLAIMS COMMITTEE Twenty-fifth Defendant* JUDGMENT Tuchten J: 1 This is an action for delictual damages. For the plaintiffs to succeed, they must prove dolus on the part of the defendants. Introduction 2 This case has a long procedural history. As the case number shows, the plaintiffs instituted their action in 2010. The framework for the action selected by the plaintiffs, including the multiplicity of defendants cited and the nature of the allegations made by them, contributed to a lengthy lead time before the case ultimately came to court for hearing on the merits. 0-3 0-3 Page 4 3 The case came before court twice before me in circumstances I shall briefly describe. At one of these hearings, on 21 October 2024, clarity was achieved on the status of certain defendants who had either died or for some reason were not represented before me on that date. After some debate, the plaintiffs withdrew, or confirmed previous withdrawals, against all such defendants. I have identified the defendants against whom the plaintiffs have withdrawn by asterisks marked against their names in the heading to this judgment. The result is that all the remaining parties to the action are represented before me by counsel. 4 In the present proceedings, Adv J Joubert appears for the first to seventh and eleventh plaintiffs and Adv Berdou for the eighth to tenth plaintiffs. Advs Rossouw SC and and De Beer appear for the 1st, 10th, 13th and 23rd defendants while Adv Mpshe and Adv Shole appear for the 4 th, 7 th and 18 th defendants. Although there is this separate representation at a formal level, generally it will not be necessary to distinguish between the positions taken by counsel appearing for one party or another. I shall thus sometimes describe a submission as emanating from counsel for the plaintiffs or the defendants without identifying the counsel who actually made the submission. 0-4 0-4 Page 5 5 In an interlocutory judgment which I handed down on 1 November 2024 (the witness regimes judgment), I summarised the case for the plaintiffs, as I saw it. At the start of the trial, counsel for the plaintiffs said in their opening address that my summary adequately reflected the nature of the plaintiffs’ case. So I shall in substance repeat what I previously wrote. 6 The trial proper before me began on 20 January 2025. It ran, according to my notes, for some 67 court days. Argument was completed on 3 September 2025 and I reserved judgment. The pleadings 7 The case for the plaintiffs is that the plaintiffs sought to utilise certain properties in the Badplaas Valley, Mpumalanga for a project which they called the Cradle of Life Nkomazi Wilderness, referred to in the particulars of claim as the Project. I shall also call it the Project or Nkomazi. These properties, the plaintiffs say, were acquired with the Project in mind. The commercial essence of the Project was the creation, on land owned or controlled by the plaintiffs, of a game reserve with associated high end tourism facilities 0-5 0-5 Page 6 8 The plaintiffs say that during or about October 2007 and thereafter, a collusive corrupt, fraudulent and unlawful relationship (which the plaintiffs label the collusive agreement) came into being to force the plaintiffs “out of Nkomazi”, ie the Project. 9 During the exercise of the collusive agreement, say the plaintiffs, certain of the defendants withheld the “Big Five Permits” from the plaintiffs. This, the plaintiffs say, crippled the Project. In addition, the defendants “colluded and some were manipulated” to damage the plaintiffs’ reputations and all their business and commercial interests. The defendants who are not organs of state are said to have acted in a manner which rendered the organ of state defendants, in addition to their direct liabilities, vicariously liable. 10 Once the plaintiffs had been driven from the Project, the plaintiffs say, Big Five permits were then granted to a firm called Dubai World. This is said to have been an “unauthorised, and/or mala fide, and/or biased, and/or ultra vires exercise of power by the first and/or one or more of ninth to fifteenth defendants”, thereby also infringing certain of the plaintiffs’ constitutional rights. 0-6 0-6 Page 7 11 The 1 st, 4th and 9 th to 25 th defendants colluded, the plaintiffs say, to place the plaintiffs under duress and, ultimately, certain of the plaintiffs sold Nkomazi Wilderness to Dubai World for a much lower price than would have been realised if “the reserve” had been issued with Big Five and large predator permits. The alleged acts of duress included “[h]ijack[ing] the Msauli Village” after large sums had been spent to rehabilitate it, withholding crucial permits, procuring the destruction of a fence, victimising the 11 th plaintiff (Mr Daniel) who acted as a whistle blower, presenting fictitious land claims, arranging violent public actions, bribing and misleading the press to spread false information about the 11 th plaintiff to discredit him and ruin his reputation, instigating violence and intimidation against Mr Daniel, his family and his business to drive him out of the Badplaas Valley, threatening to liquidate the 1 st plaintiff (Grand Valley), instigating an unlawful raid on the Cradle of Life Rehabilitation Centre, laying criminal charges against Mr Daniel, informing prospective investors in Nkomazi that the Grand Valley would be replaced by Dubai World and promising to issue to Dubai World permits which had been refused to Grand Valley. 12 All these actions, the plaintiffs say, caused them to suffer damages. In particulars of claim amended in November 2024 and dated 5 December 2024, Grand Valley alone of the plaintiffs claimed 0-7 0-7 Page 8 R812 million for loss of profits and R655 million in respect of the loss of the value of vacant land, valued as at 28 February 2008, plus mora interest. The plaintiffs do not persist in the other claims for damages which had previously featured in their particulars of claim before the November 2024 amendment. To be clear, the amendment means that the claims of the plaintiffs other than those of Grand Valley have not been proceeded with. In short, they were abandoned. 13 In the end, the plaintiffs asked for judgment only against the 1 st and 4th defendants. 14 I was told that the original trial judge was not required to make a finding on damages because that issue was separated for later adjudication. However, when I interrogated this question, it appeared that although the question of separation of issues concerning damages had been raised during the very lengthy, indeed tortuous, pre-trial proceedings, a separation of these issues was never finalised and no order for separation was ever made. After hearing the parties, I ruled as trial manager that there would be no separation and that all the issues would be decided at a single hearing. The parties accepted my ruling. 0-8 0-8 Page 9 15 Despite the late amendment, which significantly increased the quantum of damages claimed, the defendants elected and, through counsel conveyed to me their election, to proceed with the trial on the pleadings as they stood after the November 2024 amendment. 16 In their plea, the defendants deny the alleged collusive agreement and further deny committing the individual acts which the plaintiffs say gave substance to the collusive agreement. They plead that if the plaintiffs suffered any damages as alleged, the plaintiffs could and should have mitigated them. Then there are a number of defences styled special pleas. 17 In the first special plea, the defendants plead a failure to comply with s 103(2) of the Mpumalanga Nature Conservation Act 1 (the MNCA). This special plea was however withdrawn. 18 In the second special plea, the defendants plead a written settlement agreement concluded on 15 May 2009. The defendants contend that this settlement agreement covered the subject matter of the present action. 1 10 of 1998 0-9 0-9 Page 10 19 In the third special plea, the defendants contend that the alleged acts of oppression of which the plaintiffs complain would have been susceptible to remedial action under PAJA 2 or the Constitution. Having not sought such remedial action, the defendants say, the plaintiffs are not entitled to claim consequential damages. 20 In the fourth special plea, the defendants contend that there has been a failure to join an essential party to the proceedings, ie Dubai World. This special plea was abandoned. 21 In the fifth special plea, the defendants plead that the plaintiffs settled their claims against Dubai World in separate legal proceedings. The defendants argue that s 2(13) of the Apportionment of Damages Act3 (the ADA), renders it legally impossible for any party to settle against one joint wrongdoer and thereby avoid the consequences of s 2(13). The essence of the defence is that as Dubai World has settled the plaintiffs’ claim in full, any liability of the present defendants has been discharged. 2 Promotion of Administrative Justice Act, 3 of 2000 3 34 of 1956 0-10 0-10 Page 11 22 The sixth special plea is that to the extent that the plaintiffs’ claim arises from the presentation of false land claims, such land claims fall to be dealt with under ss 22(1) and 22(2) of the Restitution of Land Rights Act4 (the RLRA), and that the Land Claims Court established under the RLRA has exclusive jurisdiction to deal with the plaintiffs’ claim to the extent that their claim is premised on matters reserved under the RLRA for the jurisdiction of the Land Claims Court. 23 The seventh special plea is lis pendens. The allegation is that certain of the land claims issues were indeed referred to and are presently serving before the Land Claims Court. 24 The eighth special plea is that a new cause of action was introduced by amendment on 19 May 2023 and had prescribed under s 11 of the Prescription Act.5 This plea was not pressed in argument. 25 Both a replication to the special pleas and a rejoinder were filed but it is unnecessary to deal with the matters raised in those pleadings. Some of the special pleas were abandoned. I shall deal with those that remained toward the end of this judgment. 4 22 of 1994 5 68 of 1968 0-11 0-11 Page 12 26 The case came initially for trial before Sardiwalla J. After hearing some twenty-five days of testimony, the learned judge was removed from active service for medical reasons, which I understand were related to a cognitive defect. All of that testimony was heard by remote platform, during the Covid pandemic. The testimony before the original trial judge was that of all the plaintiffs’ witnesses and, after the plaintiffs’ case had been closed, some of the evidence in chief of the defendants’ first witness. In addition, there was an inspection in loco, at which photographs were taken but no recordal was made by the original trial judge of what, if anything, was pointed out at the inspection. 27 I was appointed to hear the case after Sardiwalla J became incapacitated and I returned from retirement to do so. Interlocutory proceedings brought before me 28 I heard an earlier application for procedural directives on 13 May 2024 (the May 2024 application). The plaintiffs, who were the applicants in the May 2024 application, as they are in this present application, sought procedural directions for the further conduct of the trial. The parties described the central issue in the May 2024 application to be whether the trial should proceed before the new trial judge where 0-12 0-12 Page 13 Sardiwalla J left off, on the basis of the transcripts and video recordings of evidence, or whether the trial should start de novo. 29 After some argument was presented, the May 2024 application was resolved and the parties put up a draft which I made an order on 24 May 2024 (the May 2024 order). This order provided that the trial would commence de novo and be postponed to dates in 2025, running over the best part of the first two court terms, that a further interlocutory would be brought and heard on 21 and 22 October 2024 on the questions whether the pleadings for the trial should remain as they were as at the date of the May 2024 order, subject to any further applications for leave to amend (as contended for by the plaintiffs), or whether the pleadings for the de novo trial should revert to their form or status before the start of the aborted trial (as contended for by the defendants). The order further recorded that the plaintiffs intended to apply for the admission of certain evidence in terms of s 3 of the Law of Evidence Amendment Act.6 The order stated that the contemplated interlocutory hearings and the trial itself would be regulated by para 15 of the Consolidated Practice Directive, 1 of 2024. The costs of the earlier application were made costs in the cause. 6 45 of 1988 0-13 0-13 Page 14 30 As foreshadowed in the May 2024 order, the plaintiffs sought orders that the transcripts of the evidence given by fourteen named witnesses at the aborted trial, together with the documents to which they made reference in their testimony, be admitted into evidence for the purposes of the de novo trial; 7 that the affidavits of two further witnesses be admitted into evidence; 8 that the joint minutes and photographs of an inspection in loco held during the aborted trial and the video recording of the inspection be admitted into evidence;9 that it be declared that certain admissions made by the defendants remain binding;10 and, finally, that the defendants be directed to file summaries of [the evidence of] the witnesses they intend to call. 11 31 In a judgment handed down on 1 November 2024, I dismissed all the relief sought by the plaintiffs. In the result, the trial had to begin again, de novo, on 20 January 2025. 7 Prayers 1 and 2 8 Prayer 3 9 Prayer 4 10 Prayer 5 11 Prayer 6 0-14 0-14 Page 15 32 Amendments to the plaintiffs’ particulars of claim were sought and were effected in November 2024. When I describe the plaintiffs’ allegations, I am referring to those made in the latest iteration of the particulars of claim. The trial begins 33 The trial accordingly began, as contemplated, on 20 January 2025. But complications relating to, and delays in, the preparation of the bundle of documents meant that evidence proper only began to be led a week later. An enormous compendium of documents was placed before me. I was also given a device on which the document being referred to in evidence was supposed to appear. The limitations of the technology were soon apparent: only the plaintiff’s document expert had control over what was being displayed and for how long; there was no way in which I, or counsel, could hold a page and compare it to other documents. Eventually, a solution of sorts was devised. The expert complied a new file of documents referred to in evidence (the core bundle) and these were printed out and given to counsel and to me. All this led to further delays. 0-15 0-15 Page 16 34 Mr Daniel was the first witness. He gave his evidence in chief over many days. After he had given evidence in chief over five days and had been cross-examined over a further three days, I allowed the evidence of the next witness, Mr Hutchinson, to be led. On the fifteenth day of the hearing, an application was brought by certain of the defendants for my recusal. The recusal application was brought by notice of motion supported by affidavits, the plaintiffs filed answering affidavits and the defendants replied. The recusal application was argued on 27 February 2025. I dismissed the recusal application on the same day, in an ex tempore judgment, with reasons. Mr Daniel’s evidence then continued. In all, Mr Daniel testified ever eighteen court days, including thirteen days under cross- examination. The geography of the dispute 35 I think it will help to understand what was at times a confusing narrative if I describe the blocks of land in the Badplaas area which are relevant in this case. Toward the west are two blocks of farms forming respectively what were called in evidence the north lands and south lands of the Nkomazi reserve, ie the Project. They are intersected by a public road running from west to east. On the southern border of the south lands, lies a farm confusingly called in 0-16 0-16 Page 17 the evidence Cambalala or Paperbark, on which was constructed a house, used as an office, and a complex of camps and cages. These latter formed what was described as a rehabilitation facility, under the ultimate control of Mr Daniel. The ground on which the rehabilitation facility lay was owned by the 2 nd plaintiff (Edge To Edge). Mr Daniel was not at first a director of Edge to Edge. Its director was the 12 th plaintiff, Mr Huba, who died before the trial before me began. These facts, something of a technicality in the context of the cause of action (the alleged corrupt agreement to drive Mr Daniel from Nkomazi and its alleged execution), are significant because of a prosecution instituted against Mr Daniel and Grand Valley at the instance of the 1st defendant, (the MTPA). 36 To the east of the Project lies the Songimvelo Nature Reserve, a large tract of land administered by the MTPA. Within the boundaries of Songimvelo, lay several farms, the relevant rights over which were given by the South African state to a mining company, which started mining asbestos in the area in 1942. By the early 2000s, this company was called African Chrysotile Asbestos (Pty) Ltd. I shall refer to it as the Mine. 0-17 0-17 Page 18 37 In a memorandum prepared by Mr Stainforth of Absa Corporate and Merchant Bank in July 2003 for submission to prospective investors in the Project, reference was made to “Nkomazi Village”, more frequently called in evidence Msauli Village. This village had been used by the Mine for accommodating its senior personnel, with 110 three- or four-bed houses, married and single quarters, a recreation club with a golf course, football field, squash court and tennis courts, a hospital, a guest house, an administrative complex in a double storey building, Eskom electricity and a developed water reticulation supply. The Msauli River ran through the Village. Its road network was well developed. The national government had approved R30 million to pave a section of a nearby road over a mountain pass for tourism. 38 To the east of and adjoining the Project lay the complex, some 2 000 ha in extent, called in the evidence Travelport, on which there was at the relevant times a filling station and shops and other commercial amenities. 39 Between Songimvelo and the Project, lay two blocks of farms called in evidence the Corridor. On the Corridor dwelt several communities who used the Corridor lands for grazing their cattle and no doubt subsistence farming and other associated uses of rural people. 0-18 0-18 Page 19 THE LAND CONTESTATION 40 This case cannot be understood without an appreciation of the land contestation, which formed the context in which the many events and allegations described in evidence took place or were made. 41 The land in question is in the Badplaas area, includes the Nkomazi valley, and is rural, largely farm land. The contestation essentially set two broad communities against each other: the white, initially farmer, community who moved into the area and the black community who were settled there or entered the area for a number of reasons. 42 Of course, referring to the white and the black communities is an over- simplification. Within those broad communities, there were and are groupings such as clans, tribes and other connected families but for present purposes, the description will suffice. 43 I have drawn extensively for this analysis from a report on the history of the Nkomati Valley by Prof JWN Tempelhoff, of the School of Basic Sciences of the North-West University. The report is undated but internal evidence shows that it was written in or after 2004. Its text is in the papers before me. 0-19 0-19 Page 20 44 In the 1840s, when the present history began, the Nkomazi valley was contested by a number of groups with greater or lesser political cohesion and military capacity. AmaZulu entities were beginning to expand from their heartlands in the east of South Africa. One such entity, led by Soshangane moved north into present day Mozambique, and then west and north again into present day South Africa, where they sought to dominate the xiTsonga speaking communities already settled there. 45 The amaSwazi, who occupied present day Eswatini, were pressed by the groupings I have mentioned and resisted and themselves pressed to the west, coming into contact and conflict with the BaPedi. The Boers, ancestors of today’s Afrikaans speakers, started to move into the east of the then Zuid-Afrikaanse Republiek (the ZAR) and formed alliances with one or other of the contesting groups they encountered. Although there was some dissension within the Boer community, ultimately they allied with the ruling Swazi clan. 46 The Swazi ruler, King Mswati I, wished to secure his western border from incursions by the BaPedi and secure himself from similar threats from the other entities which were seeking to expand and press upon the Swazi ruler’s southern and eastern boundaries. For this reason, King Mswati entered into a series of three treaties with the Voortrekkers, as the Boers were also called. The first of these treaties 0-20 0-20 Page 21 was concluded in 1846. The second treaty was concluded in 1855 and the third treaty was made in 1860. 47 This broad and perhaps simplistic overview will show how the land contestation issue developed. Because under the treaties, the ZAR obtained the rights to allocate land in the Nkomazi valley to its citizens. White farmers began to establish farms there. 48 The ZAR recognised two types of farm ownership. The eigendomsplaas (farm owned out and out) and the leningsplaas (loan farm). Boer farmers would trek from the former to the latter in the summer months to graze their animals. The Nkomazi valley was largely held as leningsplase. 49 Particularly because the leningsplase were not occupied throughout the year, the Boer farmers needed labour and formed relationships with Swazis, in particular, by which the latter and their families would reside, run cattle and grow crops on the farms in exchange for their labour. 50 As first colonialism and then racial discrimination extended their sway over the area, the black settlers there were subjected to increasing coercion. The root of the problem was that while the farmers’ rights to 0-21 0-21 Page 22 the land were recognised and protected by the Roman-Dutch law and the statutes of the colonial and subsequent governments practising racial discrimination as a tenet of fundamental policy, the rights of the black tenants and labourers were not. 51 Minerals were found in the area and more people, black and white, entered the area to exploit the minerals. A more and more rigid system of racial discrimination developed, with whites administering the system predominantly for the benefit of the ruling class, ie the whites. 52 After the creation of the Union of South Africa in 1910, the rights to land of the black inhabitants of the area were reduced even further, radically so. Under the Natives' Land Act, 12 black persons were effectively prohibited from owning or acquiring rights in any land in South Africa outside certain scheduled native areas. This system of discriminatory restriction was extended or in its essentials maintained throughout the years that followed, until the advent of democracy in the 1990s. 12 27 of 1913 0-22 0-22 Page 23 53 To describe the rights held by the black inhabitants of the area, I draw on a memorandum submitted to the Minister of Land Affairs dated 17 February 2004 (also in the papers before me), in relation to certain communities and clans within the Badplaas Valley which, for present purposes, adequately identifies the rights of which black people were dispossessed under the former discriminatory regimes. 54 The claimants in question, it was said, had traceable history on the properties in question from the 1840s. They hunted and farmed there. These communities lost their rights in land after the arrival of white settlers and had to work for the white farmers, later coming to be called labour tenants. Those who refused to work for the white settlers were removed from their land in the period from 1913 to 1975 and resettled in scheduled areas. These communities were never compensated for the rights of which they were deprived. 55 To redress these historic wrongs, the democratic parliament of the Republic of South Africa enacted the Restitution of Land Rights Act,13 (the Restitution Act). Section 2 gives a person the right to enforce restitution of a right in land. A right in land is defined in s 1(xi) to mean any right in land whether registered or unregistered, and may include the interest of a labour tenant and sharecropper, a customary law 13 22 of 1994 0-23 0-23 Page 24 interest, the interest of a beneficiary under a trust arrangement and beneficial occupation for a continuous period of not less than 10 years prior to the dispossession in question. 56 The right to restitution afforded by the Restitution Act was subject to a qualification which is very important in the present context: the deprivation of the right had to have occurred after 19 June 1913, the date on which the Natives’ Land Act came into force. This effectively means that the right to own the land, which white owners in the Nkomazi Valley traced back in many cases to the 19th century, could not be impugned. What those who were deprived could assert were rights to occupy and use the land for certain purposes. 14 57 To administer the process of restitution, the Restitution Act established the Commission on Restitution of Land Rights. The different regions have their own regional commissioners and the 4 th defendant (the RLCC) is the regional and claims commissioner for the province of Mpumalanga. 14 There was an additional restriction. Claims had to be lodged by or before a specified date, 31 December 1998. As it is common cause that all the claims relevant to this case were lodged before the cut off date, I shall not enlarge on this topic. 0-24 0-24 Page 25 58 Those claims for restitution which could not be settled must be adjudicated in the court of law established by s 22 of the Restitution Act (the Land Claims Court). 59 A vast number of restitution claims were lodged as required by law. The Restitution Act provided for a process under which the relevant claims were assessed on what might be called a prima facie basis. Those which passed muster at this level were then “gazetted”, ie the fact of the claim was published in the government gazette. If the Commission deems fit, a contested claim can be referred to mediation. Then, under certain circumstances, a claim may be referred to the Land Claims Court. 60 Many land claims were lodged, gazetted and referred to the Land Claims Court in relation to farms in the Nkomazi Valley, including farms which became Project lands. The practical problem which very quickly arose in relation to these, and other, land claims was that the matters which arose for adjudication were complex and difficult to prove. The result has been, according to the evidence, that very few of these claims have been adjudicated. All the claims over the farms in the Project are still pending more than 20 years after they were lodged. 0-25 0-25 Page 26 61 An indication of the complexities which arise for adjudication in such matters emerges from the raft of special pleas filed by the respondents, ie the land owners resisting restitution, in LCC33/2007, Mabuza Family and 8 Other Claimants v Certain [not clearly identified] Respondents, which included Nkomazi Game Reserve (Pty) Ltd, Nkomazi Properties (Pty) Ltd and Dubai World Africa Services (Pty) Ltd: misjoinder in that the plaintiffs’ claims are not against the same person; misjoinder against certain respondents because no relief is claimed against them; non-joinder in that numerous necessary parties have not been joined; non-compliance with the allegedly peremptory provisions of ss11 and 11 A of the Restitution Act; a challenge to the jurisdiction of the court; lack of locus standi to lodge claims; an alleged prior settlement of the claim. That is before one even gets to the merits, ie whether the claimant is a community recognised under the restitution legislation, what the nature of the claim is and what its merits are. 62 On the merits of the claims, the landowners’ broad position was that their positions as owners of land are not assailable under the Restitution Act because none of the claimants was dispossessed of ownership after the advent of the 1913 Act but that they are, in certain instances, prepared to settle the claims by paying monetary 0-26 0-26 Page 27 compensation. The broad position of the claimants is that they demand ownership. 63 The result has been huge public dissatisfaction within the area. Certain powerful politicians became involved in the disputes. These politicians, sensing or being directed by the public anger voiced by their constituents, allied themselves with the aggrieved claimants. 64 The solution devised by these politicians, working together with officials in the RLCC, was to buy the white farmers out with public money made available for this purpose by the national government. At this time, the agricultural prospects within the Nkomazi Valley were very poor. There are disputes about the reasons for this slump. But the fact of the slump itself is not in dispute. So most farmers were keen to sell. 65 Not, however, Mr Daniel. With his close to 40 000 ha in the area, he envisioned a world class nature reserve, as well as a high end tourist attraction at the Msauli Village, the former accommodation and recreation complex serving the asbestos mine in the Songimvelo nature reserve, owned by the state and operated by the MTPA. 0-27 0-27 Page 28 66 But the politicians, the protestors they are alleged to have deployed or utilised and the officials of the RLCC were having none of that. Mr Daniel, they all said, must get out. And the process itself was affected by corruption on a large scale. My approach to the evidence 67 The nature of the plaintiffs’ cause of action produced a vast amount of testimony, enlarged even further by extensive and sometimes inordinate cross-examination on matters of detail. I have decided that it would be unhelpful to catalogue each item of evidence adduced with its qualifications and rebuttals. I therefore propose to examine the several broad themes in the evidence which are relevant to the claim separately and then try to knit them together to explain my conclusions. This does not mean that I have ignored any evidence adduced. On the contrary, throughout the trial I tried to evaluate all the evidence given to see where such evidence fitted into the mosaic laid before me. Of course I have also had the benefit of written and oral argument by counsel, which I have considered carefully. 0-28 0-28 Page 29 Land claims and Msauli Village 68 One of Mr Daniel’s concerns, when he was buying up land for the project, was restitution claims under the land restitution legislation. He was not concerned with labour tenant and other occupancy claims, which he believed, with justification, he could settle, either by allocating tracts of land, fenced off from the reserve as such or by cash payments. He was concerned with claims that could place the ownership of land the plaintiffs had bought at risk. 69 To this end he engaged Mr Spoor, an attorney, who researched the matter and reported to Grand Valley in a letter dated 15 December 2000, that Mr Daniel probably had nothing to fear on this score. This was because the land in the Badplaas district in which Mr Daniel was interested, had been owned and worked by Boer farmers and their descendants and successors well before the crucial date so that any such land claims had little prospect of success. That did not mean that there were not other types of land claims, such as those of labour tenants. But this latter class of claims did not threaten Mr Daniel’s control of the lands he bought for the Project, so they were much less of a concern to him. Mr Daniel believed the claims falling within the latter class could always be settled without fundamental risk to the Project. 0-29 0-29 Page 30 70 By letter dated 18 January 2001, the 17 th defendant, Mr Nqana, wrote to a Mr Peacock, who had enquired whether there were any restitution claims over the farm Diepgezet 388. The 17th defendant unequivocally responded that there is “no claim lodged”. His letter does include a caveat that while reasonable care had been taken in the compilation of the information given, the commission could not be held accountable if, in the process of further investigation, additional information was found that suggested a land claim. 71 On 13 September 2002, notice of a land claim was gazetted over the farm Diepgezet 388 JU. Mr Daniel was not aware of the existence of this claim until after the 17th defendant, Mr Nqana, had written to the Mine to say that a land claim had been gazetted over the farm on which the Msauli Village stood. This was one of the farms forming the Songimvelo game reserve, close by the Project. Msauli Village stood on the farm Diepgezet 388, over which the Mine held certain rights. The Mine owned the surface rights to Msauli Village, while the national government owned the land itself. Songimvelo game reserve was administered by the MTPA. Mr Daniel’s hope for Msauli Village was that it could be developed into a country and golf estate similar to colonial Williamsburg in Virginia in the USA. Songimvelo itself and Msauli fall within the Barberton Mountainlands World Heritage Trans- frontier Area. 0-30 0-30 Page 31 72 The Mine was reaching the end of its life and, in 1998, its owner wanted to close it down and retrieve the deposit it had paid for its mining license. To achieve this, the Mine had either to sell Msauli Village or demolish it. The sale required various governmental approvals, and a subdivision of the land on which Msauli Village stood. The most important approval, from the perspective of the present case, was a certificate of closure. If such a certificate was not obtained by the (extended) cut off date of the end of 2003, the Mine would be forced to demolish and lose the value of Msauli Village which had a replacement value of R50 million. From 1999, the Mine invited potential developers to participate in its efforts to incorporate Msauli Village and the mine area into Songimvelo. Mr Daniel was one of the developers whom the Mine approached, which it did by letter dated 25 October 1999. 73 The Mpumalanga government initially cooperated with the Mine in its efforts to save Msauli Village and realise its potential and started a process to find an investor with experience and access to funding to save Msauli Village. Numerous invitations were sent to potential investors. By letter dated 18 January 2001, the 17 th defendant, Mr Nqana, as the regional land claims commissioner, wrote to investors to confirm that no land restitution claims had been lodged against the property. 0-31 0-31 Page 32 74 By letter dated 15 June 2001, the RLCC, through Mr Sibiya, its then acting CEO and the 9 th defendant, wrote to the Mine that the MTPA would not oppose the Mine’s application to the national department of land affairs to purchase Msauli Village. The land on which Msauli Village stood was owned by the Republic of South Africa. The decision not to oppose was conditional but the conditions are of no moment in the present context. 75 No investors besides Mr Daniel showed any interest in Msauli Village. Mr Daniel saw the potential of Msauli Village within the Project and on 5 October 2001, took an option from the Mine in favour of Grand Valley to buy “the property owned by [the Mine] at Diepgezet” for R5 million. To achieve this, the land on which Msauli Village stood had to be made transferable and transferred to the Mine, and then to Mr Daniel’s company. No doubt, a tripartite agreement could have been concluded by which transfer could take place directly from the State to Mr Daniel’s company, but matters did not get that far. 76 Much cross-examination was directed at this document and the documents preceding and following it to give effect to the Mine’s desire, on the one hand, to sell Msauli Village and Mr Daniel’s desire to buy it. The cross-examination sought to show that ultimately the transaction lapsed for non-fulfilment of a suspensive condition in the 0-32 0-32 Page 33 agreement of sale between the Mine and a company of which Mr Daniel was a director. 77 These contractual impediments, if such they were, are of no consequence in the case. The Mine was a willing seller. Mr Daniel was a willing buyer. Mr Daniel put up the R5 million purchase price by lodging it in trust with an attorney, so the purchase money was available. If, according to the strict tenor of the law, the agreement between the Mine and Mr Daniel’s company had indeed lapsed and the parties nevertheless wished to implement the transaction, they would simply have found a mechanism to do so, eg reinstating the lapsed agreement. 78 At considerable expense to all concerned, Mr Daniel put together a consortium comprising Kerzner International, Golf Data (which developed golf courses), the Peace Parks Foundation and ABSA. The vision of the consortium was to develop Msauli Village, at that stage still fully functional, and turn it into an eco-tourism destination, linked to Songimvelo, thereby preserving the some 800 jobs of the staff employed there. 0-33 0-33 Page 34 79 Mr Daniel wanted to include Msauli Village in the Project itself. Toward this end, he convened an introductory meeting at Nkomazi attended by Mr Butch Kerzner, Mr Hutchinson, 15 Prof van Riet, Mr Sibiya and Mr Daniel himself. 80 The provincial department of land affairs in Mpumalanga was also in favour of the sale to the Mine. By letter dated 12 November 2001, either written on that date or 12 November 2002, the Mpumalanga department of land affairs sent the Mine a list of conditions that department required in respect of the sale of Msauli. Those conditions were met. 81 On 14 March 2003, the Mpumalanga department of land affairs confirmed in writing that the subdivision of the land on which Msauli Village stood and the sale of Msauli Village to the Mine had been confirmed. 82 A meeting was held at the department of the environment and tourism on 11 April 2003. This meeting was attended by Mr Daniel and a prominent conservationist, Prof van Riet. It concerned a proposed trans-frontier park involving northern Swaziland, south-eastern Mpumalanga (which included the Badplaas district and thus the 15 See below for more detail regarding Mr Hutchinson. 0-34 0-34 Page 35 Project) and southern Mozambique. During the meeting, Prof van Riet asked whether Mr Daniel should be involved in the further processes of the efforts to progress this trans-frontier initiative. It was unanimously agreed that he should. 83 However, Mr Daniel learnt from an official employed by the MTPA that he would not be invited to further such meetings on the ground that “there would be an outcry if [the Project] participated and the public was not involved”. Mr Daniel promptly wrote a letter, sent on 21 August 2003, in polite terms to Mr SIbiya to argue against his exclusion. He received no answer from Mr Sibiya. No ground was put to Mr Daniel in evidence to justify the assertion of a public outcry. 84 On 6 May 2003, the Mine and Wilderness Conservation Projects (Pty) Limited (Wilco), a company controlled by Mr Daniel, agreed, in a written agreement, on the purchase of the land on which Msauli Village stood and the fixed and movable assets standing on the land for R5 million. 85 The land in question was described as: ... portion 1 of the farm Songimvelo 600 ... held by the Republic of South Africa under Certificate of Registered Title 0-35 0-35 Page 36 ... as an as yet unsubdivided part of the farm Diepgezet 388 ... . 86 This description gave rise to much cross-examination, the cross- examiner asserting that transfer could not take place until the subdivision itself was effected and Mr Daniel responding that, on his understanding, land held by the State under certificate of registered title could be transferred away from the state without any need for further subdivision. In my view this dispute is of no moment in the present context. 87 The sale to Wilco was made conditional on the sale by the state to Wilco of the land on which Msauli Village stood for not more than R1 million. Mr Daniel’s evidence was that there was such a sale but I do not think he can be correct. That is because the evidence is quite clear that the MTPA and the RLCC, blocked the completion of the transaction. 88 This, according to Mr Daniel, was achieved in two ways. The first was by the MTPA refusing to consent to the grant of a closure certificate to the Mine by the department of mines. No basis, let alone any valid basis, for this refusal was put to Mr Daniel in evidence or advanced though any witness on behalf of the defendants. 0-36 0-36 Page 37 89 Shortly after concluding the agreement of sale with the Mine, Mr Daniel, through Wilco, took physical possession of Msauli Village. This showed the level of trust which existed between Mr Daniel and the Mine because under the sale agreement, Wilco was only entitled to possession on transfer. Wilco immediately started spending money to clean and upgrade Msauli Village. 90 Mr Daniel and his consortium complied and approved a comprehensive business plan and secured all the funding needed to develop Msauli Village as a premier eco-tourism resort, with the extensive sporting, medical and administrative facilities which I have already described. The plan included access by the eco-tourists to game drives in Songimvelo. 91 On 8 July 2003, the Mpumalanga department of agriculture, conservation and environment held a meeting “to take the process of Diepgezet Village [ie Msauli Village] further”. A minute was produced. Among the points to be actioned were that a community resolution was needed to get community support for the project and that the Albert Luthuli municipality and mayor should be involved. The minute says that Mr Daniel should make a presentation to the Albert Luthuli council on “the project”. But the Albert Luthuli municipality has jurisdiction over the Ermelo district which has nothing to do with 0-37 0-37 Page 38 Msauli Village. The minute provides that the land claims commissioner should be convinced to “give this project a high priority.” 92 When Mr Daniel saw this minute some time after 8 July 2003, he concluded that the minute and the meeting which produced it were merely a smokescreen to obscure the real agenda of those involved to frustrate his involvement in the development of Msauli Village. 93 There is no suggestion in the evidence that any of the action points in the minute were ever taken any further. 94 By letter dated 18 July 2003, Mr Daniel’s attorney, Mr Spoor, wrote to the Mpumalanga Premier, with copies to the MEC for public works, the MTPA, the Mayor of the Albert Luthuli local authority and the Mine to plead for the Premier’s help to get the Msauli transaction between the Mine and Wilco through. Mr Spoor wrote the letter in his capacity as the legal representative of the miners in the region who had succeeded in getting compensation from the Mine for the asbestosis with which they were afflicted. Mr Spoor pointed out that the afflicted miners’ trust stood to receive R2,5 million if the sale went through, but would not get this money if the sale did not go through. Mr Spoor’s plea elicited a formal acknowledgement of receipt but nothing more. 0-38 0-38 Page 39 95 By letter dated 13 August 2003, Mr Nqana informed the Mine that a land claim had been brought against Msauli Village. 96 The Mine had to dispose of it before the extended date for the closure of the mine, the end of 2003. If it did not meet this deadline, the Msauli Village would have to be demolished. The MTPA was aware of the deadline and the consequences of a failure by the mining company to find someone to take the Msauli Village over. Mr Daniel retained the services of Mr Spoor to negotiate a solution. Try as he might, however, Mr Spoor could not achieve a solution to the difficulties raised by the MTPA. 97 Mr Daniel testified that if he had not been obstructed by the MTPA, he would have developed the Msauli Village into a resort and would have made a success of it. I accept that this was probably true. 98 Faced by the attitude of the MTPA and the RLCC as described above, Mr Daniel and his consortium decided to withdraw from the sale of, and discontinue their efforts to acquire and develop, Msauli Village. The deposit of R5 million paid into trust by Wilco pursuant to the sale agreement was refunded to it. 0-39 0-39 Page 40 99 On 14 October 2003, it was recorded in a minute of the Mpumalanga department of agriculture, environment and land affairs that the RLCC had decided to buy Msauli Village from the Mine. 100 The RLCC bought Msauli Village from the state and the Mine. Somehow, the MTPA and the RLCC consented to the issue of the closure certificate needed by the Mine to achieve this, the closure certificate was forthcoming and the land claims were no longer an impediment to the transfer of the land away from the state. 101 In 2004, Mr Nqana was suspended following a report by Ernst & Young into land claim corruption. 102 The consequence of the decision by the MTPA and the RLCC and their relevant officials was that Msauli Village descended into ruin. Songimvelo itself was routinely invaded by cattle grazers, its fences were broken and its game was poached. The 800 jobs that Mr Daniel and his consortium could have saved if their plans had come to fruition were lost, as was the opportunity to provide the Badplaas district with a world class eco-tourist destination. 0-40 0-40