Cloud over judge’s ‘incapacity’
President Cyril Ramaphosa on 24 July signed an order that discharged Judge Cassim Sardiwalla from his duties at the Gauteng High Court (Pretoria).
As the trial judge in the Fred Daniel matter, Sardiwalla was presiding over evidence that implicated former Deputy President David Mabuza in a large Mpumalanga criminal enterprise.
The Daily Maverick questions whether there was a conspiracy to quash the case.
It addresses the infamous R1bn civil claim that had been lodged by Daniel against the Mpumalanga provincial government in July 2010.
In the letter that State Attorney Nelson Govender sent to Daniel’s lawyers on 9 November 2023, three days after the sixth session of the marathon trial was due to kick off, the phrase ‘de novo,’ (‘from the beginning’ or ‘anew’) was repeated more than half-a-dozen times.
In other words, notes DM, after more than 13 years of litigation, the government defendants were now arguing that the whole thing needed to start again from scratch.
‘It is trite law that when proceedings are commenced de novo,’ Govender wrote, ‘it is neither permissible nor desirable for the new presiding judge to be allowed to see or read the evidence given on a previous occasion.’
Why was Govender so sure that there would be a new presiding judge?
The precise answer to this question was something DM had been chasing since early September 2023, when the plaintiffs had been blindsided by the news that Judge Cassim Sardiwalla was suffering from an alleged ‘incapacity’.
From there, in the weeks leading up to 6 November when the sixth session of the trial was scheduled to begin, the matter of Sardiwalla’s health had become progressively more opaque.
The government defendants’ consistent use of the Stalingrad defence had been a subject DM covered through the duration of the trial and in May 2023 it had culminated in a cost order against the defendants for attempting to have Daniel’s advocate removed and the trial declared a nullity.
A simple search of the Southern African Legal Information Institute database revealed that Sardiwalla had handed down at least five judgments after 1 August 2023, when his discharge came into effect.
These judgments, on pending matters, included complicated cases to do with the Legal Practice Council, a financial services company and an application for an interdict against the EFF.
The judgments did more than test the defendants’ allegation that the judge was ‘cognitively’ impaired; crucially, they placed an enormous question mark next to his non-appearance at the sixth session.
Article disclaimer: While we have made every effort to ensure the accuracy of this article, it is not intended to provide final legal advice as facts and situations will differ from case to case, and therefore specific legal advice should be sought with a lawyer.
