An attempt by previous Passenger Rail Agency of SA (Prasa) board members and former CEO Lucky Montana to exclude civil society organisation UniteBehind from a legal battle over the state capture report failed in the Johannesburg high court.
UniteBehind, led by activist Zackie Achmat, applied in court to be joined as respondent against former Prasa board members who challenged former chief justice Raymond Zondo to have parts of the state capture report set aside.
Former Prasa board members Sfiso Buthelezi, Dr Bridgette Gasa, Nkosinathi Khena, Mmatebogo Nkoenyane and Montana initiated a legal review application in 2022 challenging the commission’s findings.
The commission detailed maladministration at Prasa, billions spent in unlawful tenders and recommended the former board be further investigated by law enforcement agencies.
The government spent almost R1bn on the commission and should the report be set aside it would affect credibility of the commission’s findings, which form the basis of several criminal cases.
Achmat applied to be joined as a respondent with Zondo to present evidence to the review court. He has litigated against Prasa for years in corruption cases.
Acting judge Xenophon Stylianou on Tuesday ruled in the organisation’s favour.
UniteBehind “demonstrated a direct and substantial interest in the review application of the respondents and, given the importance of the subject matter of the review application, it would be in the public interest and the interests of justice that #UniteBehind be granted leave to intervene as a respondent”, the judgment read.
Achmat in court argued that Montana, now an MK party MP, was protected by Busisiwe Mkhwebane when she was the public protector.
In 2016, former public protector Thuli Madonsela wrote in a report on corruption at Prasa called “Derailed” that several tenders were awarded irregularly.
This was during Montana’s tenure and when Buthelezi was the chair of the board.
In Madonsela’s report, Montana was directly implicated in having approved tenders that were not open to competitive bidding but were treated as unsolicited bids.
Buthelezi faced accusations that his private companies had benefited through Prasa tenders, but he disputed this.
Mkhwebane, however, cleared Buthelezi and Montana in her report as public protector. Achmat cites leaked reports from the National Treasury’s probe on Prasa to have provided contrary evidence.
Former Prasa board and Montana’s lawyer Salome Manganye, in opposing the application, argued that the organisation’s application would not bring new evidence to the court.
“The evidence related to Dr Gasa’s emails in relation to the appointment of Siyangena [a company that was awarded an irregular tender] ... is already there. There is no basis for them to be there [joined as respondents],” she said.
Prasa awarded security contracts worth R5.5bn to Siyangena Technologies and a R3.5bn locomotive tender to Swifambo Rail. Both tenders were found to be irregular by the courts.
Former Prasa board chair Popo Molefe testified at the commission that Swifambo chair Auswell Mashaba allegedly paid about R79m in 2015 to the ANC.
The organisation argued it intervened in the case at its own cost to ensure that the findings and recommendations of the commission would be implemented without further delay.
The commission reports were finalised three years ago exposing government officials and political elites who colluded with businesses to loot state funds; there have been few people convicted.
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