Court rebuffs Montana - again - in controversial tender case

Lucky Montana has lost another bid to have his say in a court case involving a multi-billion rand deal entered into by his former employer‚ the Passenger Rail Agency of SA (Prasa).

Judge J Francis has in the past delivered a scathing of Montana’s attempts to intervene in the case.

“Lucky Montana has raised nothing new in his application for leave to appeal‚” Judge Francis ruled on Wednesday in the Johannesburg High Court.

“All of the issues he has raised were comprehensively dealt with in my judgment. I have reconsidered the matter and the arguments raised for and against … and I am not persuaded that there is a reasonable possibility that another court will come to a different conclusion to that reached by me.”

The judgment confirmed that the former Prasa CEO could not join a legal battle between the state agency and Swifambo Rail Leasing. The application was dismissed with costs.

In July‚ Judge Francis ruled that Swifambo’s R3.5-billion locomotive supply contract with Prasa was invalid and instructed the company to pay back R2.6-billion‚ setting in motion a Supreme Court of Appeal bid by Swifambo to have his ruling overturned.

Judge Francis said the contract between Prasa and Swifambo‚ which was awarded when Deputy Finance Minister Sfiso Buthelezi was chairman of the Prasa board and Montana CEO‚ was “peppered with many irregularities”.

This included the fact that Swifambo’s tender should never have succeeded as it had not provided a tax certificate.

Swifambo has been granted leave to appeal‚ with an SCA date expected to be announced for early next year.

Montana had previously applied to be admitted as a friend of the court during the first application by Prasa‚ which Judge Francis dismissed‚ but upon granting leave to appeal to Swifambo‚ Montana also decided to try once more to join the fray.

Leave to appeal can only be granted if there exists a reasonable prospect that another court could reach a different conclusion or if‚ in terms of Section 17 of the Superior Courts Act‚ there is a compelling reason why the appeal should be heard.

In his judgment dismissing Montana’s amicus curiae application delivered on 21 June‚ Judge Francis was scathing of Montana’s actions.

“It is clear from … a closer reading of Montana’s founding affidavit that he has a fanatical interest in the proceedings which renders his admission as an amicus inappropriate.”

“It is clear that his bias emerges from the content of his founding affidavit and that he has a sectarian interest.”

Judge Francis went on to say that Montana’s perception that he was a central person behind the rigging of the Swifambo tender in the company’s favour and his “fervent interest in clearing his name has led him to incorporate scandalous‚ vexatious‚ irrelevant‚ inadmissible and privileged matters in the founding affidavit he seeks to place before the court as evidence.”

Montana did not immediately respond to a request for comment.

Prasa spokesperson Nana Zenani said the agency welcomed the ruling.

“Mr Montana’s own counsel had conceded at the hearing that Mr Montana is not a neutral party in these proceedings. It is Mr Montana’s own papers that rendered him unsuited to be a friend of the court in this matter‚” Zenani said.

“This is confirmed by the fact that even where the court had found no value for matter that was presented to it by Mr Montana‚ he felt that he had to appeal against such finding.”