Johannesburg - Law firm ENSafrica and its legal practitioners are in trouble again, with the Legal Practice Council (LPC) requested to probe their conduct in the ongoing fight for mining rights between two companies.
Trans Asia Group asked LPC to investigate ENSafrica and its legal practitioners – Senzo Mbatha and Tumi Modubu – for breach of conduct for legal practitioners. The group said ENSafrica, Mbatha, and Modubu violated sections 3 and 9 of the Code of Conduct for legal practitioners, which was promulgated by LPC in terms of section 36(1) of the Legal Practice Act 28 of 2014.
This was after ENSafrica and the two legal practitioners did not cite Trans Asia Group in an urgent application brought by ENSafica’s client, Umsobomvu, to compel the Department of Mineral Resources and Energy to release the record of the decision for the transfer of Malonjeni mining right to Transasia Minerals.
This resulted in Umsobomvu obtaining an order directing the department to deliver all documents relating to the section 98 internal appeal. The copy of the order was granted by Judge Mngqibisa Thusi in July last year.
This was despite the Trans Asia Group not being a joined party when the application was brought.
In a complaint letter issued to LPC on February 6 this year, Dr Mathews Phosa and Associates, which represents Trans Asia Minerals, said both Mbatha and Modubu were aware of the legal interest of the Trans Asia Group in the litigation. The law firm director Mathews Phosa, who also has a stake in Transasia Minerals, said this was apparent from the following facts which were the common cause:
Transasia Minerals was a party to a prospecting rights agreement with Umsobomvu since 2010. Transasia Minerals was also a party to a sale agreement in respect of the mining rights held by Umsobomvu
A dispute arose between Transasia Minerals and Umsobomvu with respect to the validity of the sale agreement. Transasia Minerals brought proceedings before the High Court in Pietermaritzburg, which pertained to the cancellation of the sale agreement
The application was withdrawn on January 20, 2021.
“The involvement of Trans Asia Group in the litigation is thus a considerable historical record. Despite this, when the application to compel the production of the record was made before Judge Thusi, the Trans Asia Group was not cited. In fact, except for the Department of Minerals and Energy, no other respondents were cited. This omission cannot be explained on the basis of ignorance. It could have been intentional,” said the Phosa.
He said the legal interest of Transasia Minerals in the legal proceedings was reaffirmed by the judgment of Judge Anthony Millar on February 3 this year. This was after Millar granted Transasia Minerals leave to intervene in the proceedings. Phosa also complained that ENSafrica assisted and abetted Umsobomvu to commit a crime.
This was after Hector Kunene, who owns Umsobomvu, flew a drone over Transasia Minerals’ premises to take pictures of the area, machinery, and activities that were taking place on the property. Phosa said the information and pictures were used in the ongoing litigation between the parties to the potential detriment of the Trans Asia Group.
He said state witness Andrew Martin confirmed to the Specialised Crime Court that ENSafrica instructed him to fly a drone over Transasia Minerals. Martin also told the court that Kunene, who paid his services, signed the forms that he was a land owner.
Phosa said this conduct shows a possible violation of the Civil Aviation Act of 2009, fraud, and trespassing. He said ENSafrica, Mbatha, and Modubu knew that Kunene was not the owner and was not permitted to enter the mining area.
“He was on bail at the time and was therefore prohibited by his bail conditions from interfering with the complaints and witnesses. They were not permitted or authorised to commission the piloting of a drone over the mining area,” Phosa said.
“In the circumstances, our clients respectfully request LPC to investigate this complaint formally, to advise our clients of the procedure to be followed in that regard, and to afford our clients the opportunity to reply to Mr Mbatha and Ms Modubu’s answer (if any) to the complaint.”
Asked if the council received the letter, LPC spokesperson advocate Kabelo Letebele said the matter was under investigation. Letebele said the process is still under way in line with the prescripts of the Legal Practice Act.
“Therefore, until the independent investigations committee or the independent disciplinary committee have looked at the detailed facts of the case, we are not able to comment on the letter or even the merits of the case, he said. ENSafrica did not respond.
The battle for the mining rights between Transasia and Umsobomvu is still before the high courts in Gauteng and Kwazulu-Natal. The fight started when the two mine companies entered into a Sale of Prospecting Agreement in 2012. Umsobomvu was to permit Transasia to take care of any applications pending in the Department of Mineral Resourcesunder section 11 (1) of the Mineral and Petroleum Resources Development Act of 2022 or for the grant of mining, as agreed.
Kunene was obliged to submit the application, but after having received R14 million from Transasia, he failed to do so and created blockages for Transasia, as he wanted the mine back. This resulted in Phosa and his business partner, Russian magnate Luda Roytblat, opening a case of fraud against Kunene.
He was arrested on August 30, 2021, and was released on R30 000 bail.
Expressing her expression on the matter, Roytblat said it was clear that ENSafrica wants to hijack the mine and was using Kunene to achieve its goal.
“With all crimes they committed you can see that they want to hijack my business. Why will the law firm put itself at risk if they have no interest?”