Gauteng businessman Auswell Mashaba is seeking court to declare unlawful and set aside the “summons” served on him by the Zondo Commission of Inquiry into allegations of State Capture – a move that could have far-reaching implications for witnesses who were summoned to appear before the commission.
Mashaba also wants the order to force the commission to withdraw the criminal case it opened against him last year at the behest of commission chair Chief Justice Raymond Zondo, after he refused to appear to answer questions over allegations that his company Swifambo Rail Leasing had looted the Passenger Rail Agency of South Africa’s (Prasa’s) coffers under the leadership of former CEO Lucky Montana.
Swifambo, which was liquidated, was awarded a R3.5-billion contract to supply 88 locomotives to the parastatal.
The company was reportedly paid R500-million by Prasa, and doled out the money to Mashaba’s other entities and associates within six days of receiving it.
Swifambo paid more than R100-million in sums of between R23-million and R30-million into Mashaba’s trust, companies and his business associates’ bank accounts.
In the court papers, in which he cited the commission as first respondent, commission secretary professor Itumeleng Mosala as second respondent and Zondo as third respondent, Mashaba said an untitled “document”, which Zondo described as a summons, was served on him last year to appear before the commission. He said the summons did not contain his rights and obligations, including the right to legal representation, to refuse to answer questions, to have his testimony heard in camera and the provision on self-incrimination.
“ On this basis, it is submitted, the summons cannot be lawful and falls to be set aside,” reads the papers.
He said if Zondo’s decision in prescribing the summons, which was signed by Mosala on February 9, is unlawful, then it follows that the summons was unlawful and should be set aside.
He said the summons was supposed to have been accompanied by every related document or statement that the commission investigators would have received from a third party, but it did not.
He said the court should declare that Zondo failed to prescribe, as required by the Commission Act, the format, including the contents of the summons that sought to procure his appearance before the commission.
He wants the court to declare that in the event that Zondo prescribed the format, including the contents of the summons, he failed to ensure that the summons included material and important information in it and as result the court should review and set aside
Zondo’s decision for him to appear.
He further said after being served with the summons, he was permitted less than two weeks to prepare for his appearance at the commission without considering that he wanted more time to assemble a legal team to represent him. The short period would not have enabled him to apply to give evidence in camera as required by the Commission Act.
He said he had intended to invoke this procedural right given certain sensitive information that he had, which concerned a number of individuals including the liquidators of the insolvent estate of Swifambo Rail Leasing.
The individuals, he said, include the liquidators Aviwe Ndyamara, Mandla Madlala and Johannes Muller, international locomotive manufacturer Vossloh Espana and a firm of attorneys who assisted Vossloh Espana in the drafting of a subcontract agreement with Swifambo Rail Leasing.
The subcontract agreement to all intents and purposes, he said, constituted an agreement that was a fronting exercise and which should ordinarily result in those attorneys being investigated to determine whether the fronting exercise should give rise to a damages claim by Prasa.
Mashaba also said he wants the court to declare that the criminal case against him be withdrawn within five days of the granting of the order he is applying for.
“On the 24th February 2021, arising from my failure to appear before the chairperson, the chairperson directed that the second respondent draft and then lodge the relevant criminal complaint against me with the South African Police [Service]. I currently do not bear any knowledge as regard the fate of the criminal complaint.
“It is my intention to determine as to which branch of the SAPS the criminal complaint was lodged [at] in order that I may then present myself there at and if necessary to arrange to appear before the relevant court,” read the papers.
The case is expected to be heard on Tuesday.
Mosala said he was not aware that Mashaba has taken them to court.
He said even if they were made aware of the court matter, they no longer have the jurisdiction to comment on it because the commission has finalised its work and submitted its report to the president.
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