Are crime syndicates operating out of our courts?

Legal reform campaigner Justin Lewis believes the answer to this question is an unequivocal “yes” and that the court authorities are not only aware of this, they are allowing it to continue.

The presence of crime syndicates in the court system is, to use a legal term, “common cause.” It has been whispered about in the corridors for years, but evidence was hard to come by. The liquidation industry, in particular, seemed to be a particularly rich source of rumours and intrigue. Then along came the Auction Alliance scandal, and the first vapours of a gangrenous infestation started to assault the nostrils. Was there something more here than just a bunch of auctioneers off-loading other people’s properties to their mates at fire-sale prices? Auction Alliance was found to have paid off liquidators, banks and attorneys to send them business, while simultaneously running fake auctions with ghost bidders to artificially drive up prices. It has long been argued that rogue attorneys were using the courts to bankrupt solvent businesses for financial gain, then auctioning off the properties at knock down prices to their mates, who would then off-load them at market prices and pocket the difference.

In February we covered the case of Ian Brakspear, the Durban businessman who was liquidated in 2008 over a R7 million loan he said he neither asked for nor received. The Hawks investigated the case and could find no evidence of the loan either. We did our own investigation and came to the same conclusion. We have been inundated with similar stories from others claiming they were fleeced by lawyer syndicates using the sanctuary of the courts, and we will be reporting on some of these in the coming weeks.

A crucial piece of evidence brought to light by Brakspear aroused our attention. A forensic document examiner looked at several court orders emanating from the Durban High Court and found a pattern of forgery. In other words, it wasn’t just Brakspear’s court order that was forged, but virtually all of the orders that were examined. The Durban court registrar also provided an affidavit to the Hawks attesting to the fact that the signature on Brakspear’s court order was not by her own hand. Add to this the fact that there is no record of the Brakspear provisional liquidation case being heard in court, and something starts to smell rotten in the court system.

Then news went out that UK-based judicial rights group Casisa (Constitution Accountability, Sedition, Independent, State, Access) was offering a R1 million reward for information relating to the forging of documents that resulted in Brakspear losing his business. Then the phones started to ring hot, and whistleblowers emerged from the woodwork. One crucial piece of evidence from this R1 million reward offer appears to show the Judge President of the Durban court dismissing the forgeries as “technicalities” that can be corrected.

Casisa’s South African representative, Justin Lewis, who has conducted a 10 year investigation into corruption in the South African courts, says: “We decided to focus our energies on the Brakspear case because the evidence was so compelling. If we succeeded in getting justice for Brakspear, then there was hope for the hundreds, if not thousands, of others who have been the victims of lawyer syndicates using the sanctuary of the courts to commit crimes and sedition against the people of South Africa. If there’s one lesson we learned as a result of this, it’s that money always talks loudest. We now have hard evidence of corruption in the courts. What we need is stronger whistle blower protection that would provide a blanket of safety for these witnesses to come forward without being harassed and intimidated by the crime syndicates.”

It looked like Brakspear was making forward progress with his efforts to have the court declare his liquidation null and void on the grounds that it was based on a forgery. His attorney went to visit to the Judge President at the Durban court, only to be told that these forgeries were “technicalities” that could be corrected. What, we wondered, could possibly be corrected about a blatant and uncontested forgery? And where was the evidence of the R7 million loan for which his life was destroyed? If Brakspear could be so summarily stripped of everything he owns based on a forged signature and, seemingly, little else, what hope is there for the rest of us?

It is a well-established fact of law, validated by the Constitutional Court and the Supreme Court of Appeal, that “fraud vitiates every transaction it enters into even orders of court” and that “if fraud and/or forgery is proved, nothing more need be pleaded.”

Section 33 of the Constitution declares that everyone “has the right to administrative action that is lawful, reasonable and procedurally fair.”

Section 34 further says everyone “has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court.”

It is therefore a constitutional right that a record is made of high court proceedings so that both the court and the litigants can be protected by way of a complete record of these proceedings. This is to prevent abuse of the legal process by a handful of rogue attorneys.

So on 4 April 2014 we fired off some questions to the Chief Justice to ask what was the Judiciary’s official position on these matters. Does it seriously consider forgery is merely a “technicality” that can be corrected?

The email was addressed to Jakes Jacobs, the chief of staff the Chief Justice. Despite several follow-up phone calls and emails, no reply has yet been received. This is what we wrote:

While we look forward to a reply from the Chief Justice, the newly-formed Ubuntu Party announced that it would incorporate several pillars of Casisa’s judicial reform recommendations into its party political platform, including:

1. An end to garnishee orders
2. An end to evictions by corrupt banks and their lawyers
3. The regulation of the banks’ lucrative liquidation industry based on usury
4. An end to the corruption of the courts and the Constitution by banks and corrupt lawyers, by holding them accountable.

Says Lewis: “The practice of forging high court orders is clearly a matter that cripples the functioning of the courts if high court orders are to have no integrity the courts cannot function at all, and neither for that matter can the legal profession.

“The Hawks’ uncontested evidence of the practice of forging high court orders was given to the Judge President by me, as well as placed squarely before his court, yet the very evidence that the Judge President asked for, he now attempts to ignore and subvert.

“Where does that leave the Hawks investigation if the court that requested the investigation states that unlawful conduct is now suddenly acceptable?”

Meanwhile, the National Efficiency Enhancement Commission (NEEC) is due to meet this month, chaired by Judge Nathan Erasmus, and is expected to discuss the issues raised by Casisa. Could it be that the judiciary is finally about to take decisive steps against lawyer-led syndicates operating out of our courts?

There will be corruption as long as there are bribes

Allegations of corruption in the courts is nothing new. In 2003, Enver Daniels, then the government’s top lawyer, was called in to clean up the Master’s office, which is the engine room of the liquidation industry. What he found was an industry “rife” with corruption, starting with small bribes of R5 to R20 for lower level officials, progressing to golf days, cell phones and other “incentives” for the bigger fish. Disturbingly, the officials concerned found “nothing wrong” with taking these bribes, big or small.

The liquidations industry was then worth R18-billion annually, and Daniels found bribes were being offered regularly to civil servants. A newspaper report at the time had this to say:

Lewis says nothing much has changed since 2003, only that the sums involved have become much larger and that the court system has been fatally corrupted in the process.