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British billionaire Daniel McGowan, who is at the centre of acquiring the Gupta family's Optimum Coal Mine (OCM), has threatened to sue Richards Bay Coal Terminal (RBCT) CEO Alan Waller for defamation of character if he does not withdraw "misleading and defamatory utterances" against him and his companies.
McGowan and his companies are already involved in a bitter court battle over the use of OCM terminal export allocation following the decision to terminate it by RBCT by the end of last month. That court process is yet to be heard in the KwaZulu-Natal High court later this month.
The latest threat to sue Waller is contained in the letter dated February 17 2023 demanding an apology and retraction on the same day or face a lawsuit.
In the letter, McGowan and his companies, Templar Capital Limited and Liberty Coal, said the affidavit deposed by Waller left him with no option but to correct the factual inaccuracies recorded by RBCT relevant to the determination of the proceedings and would file papers in due course.
The letter sent by Brett Tate of Tabacks Attorneys read:
The attorneys wrote that Waller has misguidedly contended that "...this court (KwaZulu-Natal High Court) can accept the facts as set out in RBCT's answering affidavit regarding McGowan's role in state capture and associate Gupta family".
It has been widely reported that McGowan was a Gupta associate, a claim that he has sought to clarify and categorically deny in relation to any previous and current involvement.
READ: Tangled web around Optimum Coal as McGowan continues to distance himself from the Guptas
In accordance with the adopted business rescue plan for OCM, Liberty Coal was just steps away from taking ownership of the assets of OCM as part of a debt-to-equity arrangement when the NPA launched its preservation application to have the assets and business of OCM preserved, pending forfeiture to the state.
The letter adds: "These "facts" are anything but and are simply unproven allegations which will be dealt with in the forfeiture proceedings in due course. While reckless unfounded and unproven defamatory statements similar to those made by Waller have been put up by the NPA (which are no longer met with any small degree of surprise and quite frankly taken from whence they come), Waller's statements made under oath."
McGowan, through his lawyers, also takes offence that Waller has linked him to social unrest, death threats and employment insecurities and says the allegations cannot be left unchallenged and unsanctioned. The curator of the mine currently under business rescue pending the forfeiture application by the NPA has indicated that he intends to resign due to receiving death threats.
Adds the letter:
McGowan’s lawyers wrote that it appeared that the sole purpose of Waller stating the alleged facts under oath, without a shred of evidence, including but not limited to confirmatory affidavits or contemporaneous documentation, was to deliberately and intentionally cause irreparable harm to their clients.
"Both Waller in his personal capacity and RBCT will be held liable for the irreparable damage our clients’ will suffer in this regard and our clients’ rights are strictly reserved."
The lawyers demanded that confirmation be made if Waller was authorised by the entire RBCT board to make the defamatory comments under oath in the representative capacity as the RBCT CEO or in his own capacity.
The lawyers demanded that Waller should make it public that McGowan was in no way associated with the "unnecessary social unrest, death threats (heinous or otherwise) and employment insecurities" and the same information should be made public of his retraction and apology, which should be published in a prominent position on RBCT's website.
"In the event that Waller fails to provide the aforesaid by 16:00pm on February 17 2023, we are instructed to launch proceedings for defamation and damages from Waller personally and RBCT. It follows that criminal sanction for perjury will arise in due course," the letter read.
In a response to McGowan's, lawyers representing Waller, Jeff Buckland, said: "At the outset, we record that our client has no intention to litigate by means of correspondence. Further, this letter is not intended to deal with all the allegations and statements contained in your letter and any failure to deal with any element of the letter ought not to be regarded as an admission as to their correctness."
Buckland said Waller had not accused McGowan personally of causing unrest and death threats.
"The complaint is about the environment that has been created. However, in an effort to allay your client’s unwarranted concerns, our client has instructed us to record that the abovementioned paragraphs are not intended to state that your clients have been found to personally be the instruments of social unrest or the authors of death threats. Instead, RBCT holds the view that a new environment was created through the establishment, maintenance and expectation of relative permanence of the mini-pit operations. When this new environment was threatened, social unrest and death threats ensued."
Buckland said Waller would publish both McGowan's letter and his response on RBCT's website.
