Ex-board members in bid to overturn Zondo findings on state capture
- Former Passenger Rail Agency (PRASA) board members are pressing on with their legal battle to set aside findings of corruption made against them by the state capture inquiry.
- They say the Zondo Commission did not give them an opportunity to answer the allegations and argue it is unconstitutional to require the Chief Justice's consent before bringing proceedings against a judge acting in an administrative capacity.
- Their review application has been pending before the Johannesburg High Court since October 2022.
Former Passenger Rail Agency (PRASA) board members are continuing with their legal battle to set aside findings of corruption made against them by the Zondo Commission of Inquiry into State Capture.
Their review application has been pending before the Johannesburg High Court since October 2022. It suffered a seemingly unsurmountable set-back in May this year when Chief Justice Mandisa Maya refused to grant them permission to take legal action against retired Chief Justice Raymond Zondo, who chaired the commission.
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In their final affidavit, filed nine months late, former PRASA CEO Lucky Montana and board members Sfiso Buthelezi, Bridgette Gasa, Nkosinathi Khena and Mmatebogo Nkoenyane say they will challenge the constitutionality of the provision in the Superior Courts Act which dictates that anyone wishing to take legal action against a judge must get consent first from judicial leadership.
"We believe that section is unconstitutional if it insulates judges ...from having their administrative proceedings ... challenged in an impartial court without first obtaining the consent of their peers," Buthelezi said in his latest affidavit.
He said consent should be decided by the courts, and not "administratively by a judge".
The former board members want the commission's findings against them overturned, because, they say, they were not given an opportunity to have their say and counter the allegations against them.
They say the findings have cast long shadows over their lives, as a result.
They will have to apply for condonation for the late filing of this final replying affidavit.
In explaining the delay, Buthelezi put the blame at the door of the commission, which he said had delayed filing the record of the proceedings.
Further time had been taken up when activists #UniteBehind applied to join the proceedings as a respondent.
It was only after it had been joined as a respondent, that the commission and #UniteBehind had raised the issue that Zondo had not been properly cited as a respondent. Until then, there could be no review.
"It was always clear, even to the respondents' legal representatives, that the first respondent was the chairperson of the commission as a representative of the commission and not as a judge," Buthelezi said.
"We believe that the subsequent to-ing and fro-ing was a delay strategy".
Buthelezi said "out of an abundance of caution" they joined Zondo to the proceedings.
But then, the commission contended that the review application should be dismissed because they had not got required approval from the Chief Justice to do this.
He said that again out of an abundance of caution their lawyers had written to the Chief Justice, but authority was refused.
"We again sought consent, pointing out that there were divergent views in case law on the issue when it involves the chairperson of a tribunal.
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"We pointed out that the purpose of the section was to weed out frivolous cases against judges and that this was not one of those.
"We were not seeking any relief against him. The review application is directed against the commission on which he is a representative".
No consent was forthcoming.
Buthelezi said #UniteBehind had also submitted that a court could not review "advice and recommendations" of a commission.
"But the submission ignores the fact that the complaint is chiefly about procedural fairness. It must be accepted that the commission exercises public power. The commission ought to have investigated in a manner that revealed the truth, in the public interest, and to allow those that have long been plagued by allegations of corruption and state capture to clear their names. It did the opposite when it came to us," he said.
