AS if the South African National Roads Agency doesn’t have enough to worry about after last week’s tough hearing in the Supreme Court of Appeal, it is now also being accused of forging court documents to promote its proposed Wild Coast toll road.
Sanral came under scrutiny in the appeal court last Wednesday when judges considered whether to uphold a high court decision putting under wraps all the road authority’s documents related to another controversial planned toll road, this time on key routes into Cape Town.
Told that Sanral wanted certain documents kept from the public because they could ‘cause alarm’ if made known, the appeal judges called this ‘paternalistic’ and asked whether it was not, rather, to protect the agency’s reputation. One judge commented that the application was ‘unique’ in that it was brought in a court of law, trying to deal with the court of public opinion.
Now Sanral’s reputation is under fire again: key affidavits filed by its CEO Nazir Alli intended to show that the proposed Wild Coast road had strong community support have been denounced as forgeries – one of them rejected as a fake by the very person who purportedly signed the document.
The documents complaining of forgery have now been filed with the high court, and according to lawyers for the community, the agency agreed to their being lodged as long as Sanral could subsequently file its response to the new claims. Sanral’s official reaction so far has been that they are investigating the matter, but no affidavits by the agency, dealing with the forgeries, have yet been lodged in court.
The forgery claims are part of an ongoing legal dispute in which Sanral’s CEO Nazir Alli has challenged the mandate of Cape Town lawyer Cormac Cullinan and his legal firm to represent the Wild Coast community affected by the proposed toll road. Both sides had already filed their final papers for the hearing in the mandate dispute, preparatory to the matter being heard in court. Then Cullinan spotted the alleged forgeries in the supporting affidavits forming a crucial part of Alli’s case.
The forged documents deal with whether the community has terminated the mandate it gave Cullinan’s firm as alleged by Sanral, and the extent of support by the community for Sanral’s proposed new road.
In September last year a leading member of the community filed affidavits saying the mandate to Cullinan has not been withdrawn. Nomvelwana Mhlengana, assistant to headwoman Baleni and an elected council member of the Umgungundlovu Tribal Council and the Amadiba Traditional Authority, also says that she and her community are very strongly opposed to the planned toll road.
It was when Sanral filed its reply to these documents that Cullinan noticed one of Sanral’s supporting affidavits had purportedly been signed by this same Mhlengana, just two months after she had expressed a contrary view. In the new documents she allegedly said Cullinan does not represent the community and that she backs the new road.
Lawyers believed there was a difference between the authentic signature and the forgery in Sanral’s affidavit and they hired an expert to examine them. No final answer could be given however as the original ‘forged signature’ was contained in affidavits that had been removed from the court files. Despite exhaustive searches by lawyers and court staff, the original has not been found. That means the expert was only able to examine copies of the forgery.
There was another problem with Sanral’s documents: they were signed on 11 November 2014 but the police date stamp reflects the next day. This must mean that they were not signed in the presence of the person who stamped the documents as required by law. Nor were they signed by the person identified as the commissioner of oaths.
Mhlengana has denied knowing anything about Sanral’s affidavit bearing her signature: she didn’t sign it and she didn’t go to the Mzamba police station on either date reflected on the document.
Apart from this forged signature, several other affidavits attached to the replying papers of Sanral’s Alli also appear to be forgeries: Mhlengana says she has never heard of the three people who signed the affidavits in support of Sanral and the road, and she questions whether they even exist.
At a meeting of the local community attended by about 80 people, the names were discussed and no one had heard of the three. In particular they agreed the three were not part of the Sigidi community as stated in the affidavits.
Cullinan has asked Sanral to put up evidence before court showing that these three people exist, that they were part of the Sigidi community as alleged in the documents, and that they signed the affidavits.
Cullinan said in his affidavit there was good reason to believe that Sanral – or people working on its behalf – had ‘forged the affidavits to manufacture evidence to support Sanral’s allegations’ that his firm did not have a mandate from the local community to fight the planned road. These efforts followed failed attempts by Sanral to get the affected communities to withdraw the court challenge they are bringing against the road.
Cullinan added that Alli, in his founding affidavit, had made serious allegations of professional impropriety against Cullinan and his firm, questioning whether he was telling the truth about his mandate to represent the Wild Coast communities.
“We answered by providing overwhelming evidence of the widespread support among members of the … community” for the court challenge to the road decision and for the mandate to Cullinan’s firm. “In reply Sanral introduces four forged ‘affidavits’ in a blatant attempt to mislead the court.”
Among the affidavits submitted by Cullinan in support of the forgery allegations is one by Mhlengana who says she did not sign the affidavit filed by Alli and that she was “very angry that Sanral has filed a forged affidavit” in her name which makes it seem she has committed perjury since it directly contracts her earlier affidavit two months ago, expressing opposition to the proposed road.
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