AFRICA’s largest law firm ENSafrica has been lambasted for allowing businessmen Hector Kunene to illegally collect information on private property.
Lawyers representing ANC stalwarts Mathews Phosa and his business partner, Luda Roytblat, said this shows that ENSafrica has assured Kunene that he could proceed with unlawful actions without facing consequences.
The attorneys, Hammond-Smith (HS Legal), said this also gave the impression that Kunene was above the law because the ENSafrica has encouraged his unlawful actions.
This was after Kunene visited Malonjeni coal mining and illegally flew a drone into the premises to collect information to use against Phosa and Roytblat.
This happened on July 26, 2022.
Kunene visited the mine in KwaZulu-Natal despite being released on bail conditions after he allegedly stole R14 million from Transasia – which is owned by Phosa and Roytblat. Kunene was arrested after his failure to submit an application for the grant of mining rights to Transasia, despite being paid R14 million.
This was after Transasia and Phosa’s 11 Miles Investment entered into a Sale of Prospecting Rights Agreement with Umsobomvu Coal, which is owned by Kunene, in 2012.
HS Legal attorney Hammond Smith said Kunene was permitted by ENSafrica to fly a drone into his clients’ property. He said this shows that the ENSafrica assured Kunene that he may proceed to commit unlawful actions and that there won’t be consequences for him.
“On October 31, 2022, during the second hearing of the cancellation of Kunene’s bail, the advocate acting on the instructions of ENSafrica noted that Kunene’s unlawful actions were done on instruction by ENSafrica. Counsel for Kunene capitulated that he acted strictly on the instruction of ENSafrica when he was committing the unlawful actions,” Smith said.
He said it was clear that ENSafrica has allowed Kunene to commit unlawful actions and they will give the “green light”.
The case that appeared before the Palm Ridge Magistrate this week was postponed to January 19, 2023. Smith argued that ENSafrica acted unlawfully by allowing Kunene to invade Malonjeni and take pictures and videos using a drone. ENSafrica argued that it had performed its professional responsibilities in representing its client against Transasia.
Smith’s argument came after an engineer from Helicam, Andrew James Martins, last month confirmed to the court that ENSafrica acquired his service to take videos and pictures of Malonjeni coal mining. Martin told the court that his service was required to help Kunene.
“My contact from ENSafrica informed me what time to meet and that was the arrangement made, but I did not know who I was going to meet the following day, but she said the person I would meet. I would meet the following morning, I think at roughly 10am. That was the arrangement,” said Martins who confirmed that he met Kunene at the mining entrance.
Martins told the court that he flew the drone for about 10 to 15 minutes in the area.
“We were looking for areas where there could be evidence, I think of the work being carried out. So we tried, in one section there was some machinery, like trucks and I think maybe a digger. So we wanted to get some photographs, photography of that and then also from the entrance of the roadway leading up.
“There is a house roughly in the middle of the site from where machinery was. So we covered that and then he (Kunene) ask to see if he could see any evidence of digging that may have taken place,” Martin said.
Martin said the balance payment of R5 813 was through Kunene’s account. He said he was paid R11 626 for his service. He said the other 50% was paid a day before he starts his work. Martin said the footage was delivered to ENSafrica.
On Monday, Smith told the court that Kunene’s actions were done under the instruction of ENSafrica.
“Essentially, the narrative that is being pushed by Kunene’s legal team is that he may commit unlawful actions, so long as ENSafrica gave the green light to do so,” he said.
The ENSafrica said it has always acted under the instruction of Umsobomvu, which is owned by Kunene. The law firm told the court that HS Legal complaint was an attempt to intimidate them from representing their client.
“On that basis alone, there never was, and there can never, be any reason to seek to interdict ENSafrica from doing anything. It is inexplicable why an interdict would be sought against ENSafrica unless it is for purposes of intimidation.”