Minerals and energy minister Gwede Mantashe is pulling out all the stops to overturn the high court’s dismissal of his bid to scrap parts of former chief justice Raymond Zondo’s state capture report.
In October judge Fiona Dippenaar dismissed the minister’s legal review application, which asked the high court in Johannesburg to set aside Zondo’s recommendation that he be investigated for corruption.
The application was dismissed on procedural grounds and not decided on its merits.
Mantashe, in his attack against the integrity of the report, argues the Supreme Court of Appeal (SCA) would find in his favour.
The case was dismissed by the high court because Mantashe’s legal team did not obtain consent before instituting legal action against Zondo. The Superior Courts Act requires litigants against a judge in civil proceedings to first make an application to the head of a court and obtain consent before initiating a case.
Mantashe, who waited three years to have his case heard, does not want to start the legal challenge from scratch and obtain consent. He cites in his application to appeal against the high court’s ruling that a fresh application would be costly.
“The finding that the review application is a nullity has severe consequences for the applicant [Mantashe]. It will require him to start over, obtain consent and issue fresh review papers before his case can be decided,” the minister’s court papers read.
“In addition to the costs this will impose, he will have to overcome the hurdle of obtaining condonation for the delay in instituting proceedings and will likely be met by a defence that the merits of the review application have been finally decided against him by this court.”
Mantashe clings to the argument that consent was not required because Zondo was acting in his capacity as chairperson of the commission, adding the litigation was mainly aimed at the findings of the report, not Zondo.
“A review of the exercise of public power by a judge sitting as the chairperson of a commission of inquiry does not constitute the institution of civil pleadings against that judge. As a result, the consent of the head of court is not required.”
Mantashe’s legal team makes the argument, though Zondo is cited as the first respondent and the commission the second.
Conflicting judgments
The minister contends the matter has to be decided by the SCA because there are two conflicting high court judgments on whether litigants are required to seek consent when challenging the outcomes of commissions normally chaired by judges.
“There are, in addition, compelling reasons to grant leave to appeal, as there are conflicting judgments on the point and important questions of law that would be raised in an appeal, which would have an effect on future disputes.”
Zondo’s legal team, led by advocate Alan Dodson, won the case against Mantashe on the consent point and maintains in its opposition to the appeal the minister has not met the grounds to be granted leave to appeal.
“While the existence of conflicting judgments is a factor to be taken into consideration, it does not, in and of itself, provide sufficient grounds for granting leave to appeal,” Zondo’s legal papers read.
Mantashe relies on the judgment by Pretoria high court judge Graham Moshoana in the case of former SAA Technical procurement head Nontsasa Memela challenging the state capture report.
While Memela lost the case, Moshoana found the Superior Courts Act did not shield judges from litigation when working as commission chairs.
Zondo’s legal team argues “a court is not obliged to follow a judgment that is clearly wrong”, emphasising Dippenaar was correct in not agreeing with Moshoana.
Mantashe contends Dippenaar’s interpretation “results in a limitation of the right of access to court contained in section 34 of the Bill of Rights. But section 47(1) need not be interpreted in this way”.
“There is a reasonable prospect the SCA will find that, properly interpreted, section 47(1) of the Superior Courts Act does not apply when a litigant seeks to review a decision taken by a judge as the head of a commission of inquiry,” Mantashe’s papers read.
“When a judge exercises public power as the head of a commission of inquiry, and an affected person wishes to review that exercise of public power, the judge is not properly construed as the person ‘against’ whom the civil proceedings are directed. Judicial review is not brought ‘against’ the judge who took the decision that is sought to be reviewed.”
While many ANC members have criticised the findings of the Zondo’s report, few have challenged the report in court. Besides Mantashe, ANC deputy secretary-general Nomvula Mokonyane indicated her intentions to challenge the report.
The report’s findings, published in 2022, were damning to the image of the ANC.
The party, fighting a corruption tag image through its “renewal” campaign two years after the release of the report, was dealt a blow in the 2024 general elections, losing its majority power for the first time in democratic South Africa. It obtained 40.18% of the vote.
Business Day
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