Mantashe seeks to file appeal in Zondo case

Minister Gwede Mantashe has initiated an application to appeal the Johannesburg high court’s dismissal of his legal bid to have parts of former chief justice Raymond Zondo’s state capture report scrapped.

Judge Fiona Dippenaar dismissed in October the minister’s legal review application, which asked the court to set aside Zondo’s recommendation that he be investigated for corruption.

The application was dismissed on procedural grounds.

Mantashe’s legal team did not obtain consent before instituting legal action against Zondo. The Superior Courts Act section 47 requires litigants against a judge in civil proceedings to first make an application to the head of a court before initiating a case.

Mantashe’s lawyers argued consent was not required in their case because Zondo was acting in his capacity as chairperson of the commission, not as a judge, and was not performing judicial functions.

Dippenaar disagreed and found the Superior Courts Act’s protection was not limited to judges performing the functions of a judge only.

Mantashe’s legal team filed court papers on Friday for leave to appeal to the Supreme Court of Appeal (SCA), or alternatively, the full court, against Dippenaar’s whole judgment.

Mantashe, in his application for leave to appeal, disagrees with the court’s interpretation of the rules detailed in section 47 of the Superior Courts Act.

“The court ought to have held that no consent is required under section 47 of the Superior Courts Act where a party seeks to subject the findings by a commission of inquiry established by the president and chaired by a judge to judicial review,” the minister’s court papers said.

Mantashe pins the legal argument on a judgment made by Pretoria high court judge Graham Moshoana in the case of former SAA Technical (SAAT) procurement head Nontsasa Memela against Zondo. The judgment was delivered on August 14, two months before the Mantashe judgment.

While Memela lost the case, Moshoana found the Superior Courts Act did not shield judges from litigation when working as commission chairs.

“The judicial officer was cited in his capacity as chairperson of the commission and not as a judicial officer,” the Moshoana judgment said.

“The functions he performed were governed by the Commissions Act and were not judicial in nature,” it said.

“The provisions of section 47(1) do not apply to those functions. Accordingly, the applicant did not require consent of the head of the Constitutional Court to launch a judicial review against the findings and recommendations of the chairperson of the commission,” the judgment said.

Mantashe argues Dippenaar should have ruled in line with Moshoana’s findings.

“The court ought to have followed the holding in the Memela [case] that a review application against the findings by a commission of inquiry established by the president and chaired by a judge is not a civil proceeding instituted against a judge within the meaning of section 47(1) of the Superior Courts Act,” Mantashe said in court papers.

“In light of the holding in Memela, there are conflicting judgments on the meaning and scope of section 47(1) of the Superior Courts Act, and there is accordingly a compelling reason for leave to appeal to be granted.”

Dippenaar disagreed with Moshoana’s finding that consent was not required.

“The nub of the judgment in Memela concerns the finding that the immunity protection afforded by section 47(1) is limited to judges performing the functions of a judge and that the chairing of a commission of enquiry is not a judicial function but a public or statutory function.

“That does not accord with the authorities referred to in this judgment, which gives section 47(1) an expansive definition which includes affording protection to judges in both their judicial and private capacities. With respect, the judgment [Moshoana] fails to take these considerations and precedent into account,” Dippenaar said.

Dippenaar, in her finding that Zondo was performing a judicial function as chair of the commission, relied on the Remuneration Act, which details active service performed as a Constitutional Court judge or judge in a permanent capacity, including service as a chairperson or a member of a commission in the Commissions Act.

“After anxious consideration, I must conclude that Memela is clearly wrong, and I respectfully decline to follow it.”