Former chief justice Raymond Zondo’s days in court are far from over as he has been ordered by the high court in Johannesburg to defend the commission of inquiry into state capture’s report against former Prasa board members.
Former Prasa board members, former deputy finance minister Sfiso Buthelezi, Dr Bridgette Gasa, Nkosinathi Khena, Mmatebogo Nkoenyane and former Prasa CEO Lucky Montana (now MK party MP) initiated a legal review application in 2022 challenging the commission’s report.
The board members want the high court to declare part of the commission’s report detailing allegations of maladministration at Prasa unlawful and be reviewed and set aside.
The case was, however, delayed because the former board members in their initial application in October 2022 did not cite Zondo who was the commission’s chair.
There have been other review applications against the state capture report including one from former Eskom acting CEO Matshela Koko but the report has not been declared unlawful by a court.
The government spent almost R1bn on the commission to expose a trail of corruption and should the report be set aside this will adversely affect the commission.
The high court late last month ordered Zondo to be the first respondent in the former Prasa board members’ review application on the state capture report.
This was a “breakthrough” for the former board members who have been asking for Zondo to be joined in the review application since 2023.
The court made the order because the former board members in their initial application cited the commission as the respondent and not Zondo, who was the commission’s chair.
Zondo did not respond to the court papers, saying he was not cited. After a two-year delay, Zondo is expected to file answering affidavits for the case to proceed.
The first applicant in the case, Buthelezi, a former Prasa board chair, in an interview with Business Day said he believed Zondo made “errors” in the report.
“Now that he has joined, we are requesting the former chief justice to respond. We believe he made monumental errors in his findings by breaking his own rules of the commission and factually,” he said.
Buthelezi alleged some of the board members were not given an opportunity by the commission to answer to allegations levelled against them.
While the former board members applied to declare the report unlawful, their alternative is to set aside the commission’s recommendation for the national director of public prosecution's prosecution against Buthelezi, Gasa, Nkoenyane, Montana, Khena, Marissa Moore and Mfanyana Salanje, who recommended approval of an irregular R3.5bn locomotive tender.
The tender was awarded to Swifambo Rail and was found by different courts to have been irregular because it was tainted by corruption.
Former Prasa board chair Popo Molefe testified at the commission that Swifambo chair Auswell Mashaba allegedly paid about R79m in 2015 to the ANC after the multibillion-rand tender was approved.
Legal expert Llewelyn Curlewis said Prasa board members’ technical error by not citing Zondo in their initial application could negatively affect their application.
“The court will investigate the circumstances that led to the delay, the applicants’ lawyers should have known better to cite the commission’s chairperson in their initial court papers. It’s basic rules of citations in civil proceedings,” he said.
The chances of applicants being successful in setting aside the report are slim, he said.
“I am not confident that these applicants might be successful in their applications to have the report findings set aside,” he said
“To go back to the court to try to set aside Zondo’s decision after so many years is not going to be easy. I think the applicants have missed the bus there.”
While several politicians, including ANC chair Gwede Mantashe, have threatened to challenge the report, Curlewis said it would be tough to convince courts to set it aside.
“They should have been more active to initiate the proceedings when the report came out. Every day that passes the court will be more reluctant and frown upon the merits and motives behind such applications.”
Setting aside a commission’s report is more difficult than arguing for setting aside a case, he said.
“There has been no case in which the court found the commission to have been wrong. The rules which relate to inquiries are different from court cases.
“People tend to think the commission is a court hearing where the presiding officer must make conclusive findings and judgments; it is not so.
“Zondo had to make recommendations based on the evidence before him. Zondo did his job as far as I am concerned.”
The former board implicated in the report was appointed by former president Jacob Zuma. The report implicated several politicians including Zuma who was described by witnesses as the “mastermind” of the systematic capture of government tenders by the Gupta brothers, Ajay, Atul and Rajesh.
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