After a three-year wait, mineral & petroleum resources minister Gwede Mantashe on Monday finally had his day in court for the hearing of his application to have a part of former chief justice Raymond Zondo’s state capture report scrapped.
Mantashe initiated the legal challenge at the high court in Johannesburg in July 2022 after the state capture report recommended he be investigated for corruption. He wants the court to review and set aside the recommendation.
The high court battles with huge backlogs and the matter was allocated to judge Fiona Dippenaar only for Monday. Judge president Dunstan Mlambo made a brief appearance in the gallery where Mantashe sat for five hours listening to arguments.
Former Bosasa COO Angelo Agrizzi testified at the commission Mantashe was among politicians who benefited from state-owned entity favours to political elites. Bosasa was awarded contracts by the state estimated to be worth R2.3bn. Agrizzi estimated that R75m was paid out in bribes.
Bosasa installed cameras at three homes belonging to Mantashe, including his properties in the Eastern Cape and Boksburg. He did not pay for the installation. Mantashe contends he was unaware the cameras were installed as a family friend, Papa Leshabane, who did work for Bosasa too, offered to do the installations.
The commission found: “In the circumstances there is a reasonable prospect that further investigation will uncover [a] prima facie case against Mr Mantashe in respect of the offence of corruption in terms of section 3 of PRECCA [Prevention and Combating of Corrupt Activities Act] and the matter is referred for investigation.”
Agrizzi told the commission former Bosasa head Gavin Watson described Mantashe as a “brilliant connection”.
Terms of reference
Mantashe’s lawyer, advocate Fana Nalane, argued the commission acted outside its terms of reference in making a finding against Mantashe. When the cameras were installed Mantashe was not a minister but ANC secretary-general.
He said the stipulated terms of reference for the commission were mainly aimed at investigating ministers and other public officer bearers linked to the state capture and corruption allegations.
Nalane argued the commission found no evidence against Mantashe on corruption claims and the recommendation of a corruption probe was “irrational”. He said the recommendation also cast a dark cloud over the minister and caused harm to his reputation.
Representing Zondo, advocate Alan Dodson argued Mantashe’s case was “dead in the water” because his attorneys did not obtain consent from the Supreme Court of Appeal judge president to institute legal action against a judge.
The Superior Courts Act requires litigants in civil proceedings against a judge to first make an application to the Supreme Court of Appeal judge president before the case is heard.
Mantashe’s lawyers did not make the application, arguing the case was not against Zondo in his personal capacity but as the chair of the commission.
Dodson said failing to make the application meant “everything must collapse like a house of cards” because the foundation of the application was fatally flawed as Zondo remained a judge even as the head of the commission.
There is no basis of reviewability in that the commission did not breach the law in its conduct, he argued. He said Mantashe suffered no harm because of the commission’s finding as the ANC did not institute the step-aside rule against him.
“Mantashe’s rights were not impacted in any way. No actions have been taken against him. He was not removed following the findings. Mr Mantashe retains a top position in government,” Dodson said.
He argued the commission did not act irrationally, adding that because of the modus operandi of Bosasa there were reasons to believe the camera installations were done so that Mantashe could later act or facilitate in favour of the entity.
“There can be no finding that the former chief justice acted irrationality or in breach of legal processes. The reasoning was fair and he scrutinised evidence. The judge did not jump to conclusions but protected his [Mantashe’s] rights. It was a careful assessment,” he said.
He argued the commission investigated allegations of corruption and, despite not being in government, Mantashe fell within the wide scope of the corruption web investigation.
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