Minister Gwede Mantashe’s legal bid to have parts of former chief justice Raymond Zondo’s state capture report scrapped has failed in the high court in Johannesburg.
Mantashe lodged a legal review application asking the court to set aside Zondo’s recommendation that he be investigated for corruption. Judge Fiona Dippenaar dismissed his case on Monday.
This means the findings that he be investigated still hold.
The application was dismissed on technical grounds. Mantashe’s legal team failed to obtain consent before instituting legal action against Zondo. The Superior Courts Act requires litigants against a judge to first make an application to the head of a court before initiating a case.
In this case, Zondo was the chief justice when the proceedings were instituted, and consent should have been sought from the president of the Supreme Court of Appeal (SCA).
Mantashe’s lawyer, advocate Fana Nalane, argued they did not make the application because the challenge was against Zondo in his capacity as the chair of the commission, not necessarily as a judge.
Dippenaar dismissed the argument, saying Zondo, acting as the chairperson of the commission, was performing a judicial function.
“The applicant is not barred from a review, as he contended. The applicant must simply follow the correct procedure. This review application is thus a legal nullity,” the judgment read.
Dippenaar’s dismissal did not consider other issues raised in the review.
“Consent must be granted before the proceedings are instituted. It is clear that if consent is not sought and granted before the institution of the proceedings, they are fatally defective and stand to be dismissed on that ground alone.
“Given this conclusion, it is not necessary or appropriate to consider the other issues raised, as it is dispositive of this application.”
The judgment was in line with the legal arguments of advocate Alan Dodson, who represented Zondo. He argued Mantashe’s review was “dead in the water” because his attorneys did not obtain consent. It meant “everything must collapse like a house of cards” because the foundation of the application was fatally flawed.
The commission recommended Mantashe be further investigated after former Bosasa COO Angelo Agrizzi testified that Mantashe was among politicians who benefited from favours by state-owned entities to political elites.
Bosasa was awarded state contracts 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.
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.”
Nalane argued the commission acted outside its terms of reference in making the finding against Mantashe. These were mainly aimed at investigating ministers and other public office bearers linked to state capture and corruption allegations. At the time Mantashe was not a minister.
Nalane argued the commission had found no evidence against Mantashe on corruption claims, and the recommendation of a corruption probe was “irrational”. The recommendation had cast a dark cloud over the minister and caused harm to his reputation.
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