Zondo commission punished with costs order in Salim Essa case
The Zondo commission has been punished with a costs order after seeking the recusal of a Johannesburg high court judge who heard an application for a postponement in Salim Essa’s legal challenge to the report on state capture.
The adverse ruling has raised concerns in government about irregular expenditure because it confirmed that the commission and Chief Justice Raymond Zondo opted to be represented by a private firm of attorneys, instead of duly retaining the services of the office of the state attorney.
The recusal application was brought by advocate Pule Seleka SC after a tense exchange with Judge Rean Strydom when the interlocutory application in Essa’s review bid was heard earlier this month.
Seleka served as an evidence leader in the state capture inquiry and was initially briefed by the office of the state attorney in line with an undertaking that it would enlist counsel who had worked with the commission to defend challenges to its report.
The thinking was that the commission would benefit from their familiarity with the subject matter, and that it would also help to contain legal fees.
But Strydom’s ruling states that Seleka was instructed by RB Rangata Attorneys, not the state attorney, when he made the recusal application.
This raises questions as to who will pay the costs and the firm’s fees because the department of justice became the custodian of the report once Zondo handed the final volume to President Cyril Ramaphosa, and the department litigates through the office of the state attorney.
Essa, who was memorably described as the Gupta family’s “money-laundering lieutenant” in evidence led before the commission, filed an application from abroad last year to have numerous sections of the report bearing reference to him set aside. He cited the commission as the first respondent and Zondo as the second.
In August the commission, at the time still represented by the state attorney, filed notice of its intention to oppose the application.
It did not file an answering affidavit and has, according to the high court ruling, not done so to date.
The state attorney wrote to Essa in October last year asking that he stump up security for legal costs the state may incur in successfully opposing his application. No reply was forthcoming.
In February, the commission filed a court application for the case to be dismissed with costs, alternatively that it be stayed pending posting of security of R5 million by Essa.
Frivolous challenges
The rationale on the part of the department and the solicitor general was to discourage frivolous challenges to the commission’s findings, and to ensure the state could recover money spent in opposing review applications filed by litigants who have left the country.
“We demanded that he put up security because he is a fugitive from justice,” solicitor general Fhedzisani Pandelani said.
When asked about the cost order, he said the demand for security had been the end of the state attorney’s involvement in the case.
“That was the last I heard. From there on we were nudged out of the case,” he said, adding that it was unprecedented for the office of the state attorney to have a brief terminated.
Both he and Justice Minister Ronald Lamola’s office told the Mail & Guardian they were not aware of the failed recusal application. And both said the department would pay neither the costs as per the court order nor the fees of the law firm that represented the commission.
“To whom does this bill go?” Pandelani asked. “The commission is functus officio [its mandate has expired].”
Pandelani insisted that the justice department cannot be held liable for what happened in the Essa matter because it had not authorised the appointment of a private firm of attorneys.
“It can’t be justice if the accounting officer has not signed off on it.”
He added that though his office did occasionally outsource work, that had not happened in this case, hence the appointment of RB Rantanga Attorneys was “irregular”.
“I have not ratified anybody as a third party in terms of outsourcing. We outsource under exceptional circumstances but there needs to be a paper trial.”
The following transpired after the commission filed for dismissal, or an order compelling Essa to post security. His lawyer filed notice of his intention to oppose on 8 February, but did not file an answering affidavit.
The commission then asked for the matter to be set down on the unopposed motion court roll for hearing on 2 May. Essa finally filed an answering affidavit on the eve of the hearing, where the matter was postponed indefinitely.
After the commission filed a replying affidavit, it was set down for 3 August. In late July, Essa lodged an application for a postponement, which the commission opposed.
On the hearing date, Strydom proposed that the court deal with his postponement application upfront.
Essa’s counsel argued that the commission flouted high court practice directives when it had the matter set down as an opposed application, while it had not filed all necessary papers.
Strydom asked Seleka for submissions as “to whether the JCE [the judicial commission of enquiry] complied with the directives of this court”.
Seleka replied that it was set down by the registrar and after some debate with the bench, called for Strydom’s recusal. He proceeded to plead that the manner in which the judge engaged him suggested bias.
“He argued that I gave evidence from the bench in assistance of the case for postponement on behalf of Mr Essa,” Strydom recalled in the ruling.
Seleka submitted that the court seemed unwilling to see the inconsistencies in Essa’s submissions on the availability of his counsel. At the same time it had, he said, shown a willingness to hear the application for a postponement when legal precedent dictated otherwise, and had furthermore inferred underhandedness in the manner the matter was set down.
Strydom dismissed the application the following day.
“In my view, what I said would not have been conceived by a reasonable person as a pre-determination of the matter, but rather, active participation by a presiding judge with counsel. I have expressed views but have not pre-determined the application.
“My prima facie views expressed are still subject to persuasion and could not have created a perception of bias.”
Regarding the exchange on compliance with court directives, the judge said he had not raised his voice or changed his demeanour in a way that could be interpreted as favouring Essa, and was waiting to hear Seleka’s explanation.
“He could still have convinced the court that should there have been non-compliance, this could be overseen or condoned by the court. A reasonable, objective, and informed person would have concluded as such.”
Strydom directed that the commission “pay the wasted costs occasioned by the refusal of the application for recusal”.
Questions were sent to the chief justice but a response was not received by the time of publication.
Legal challenges
Well-placed sources confirmed that there had been high-level discussions about defending legal challenges to his six-volume report and said Zondo had asked whether the state attorney’s office in Johannesburg had time and capacity to handle the work.
His concerns were not without merit, they conceded, but said the state attorney’s office was prepared to deploy staff from Pretoria to represent the commission. According to Pandelani, the possibility of requesting a deviation to allow it to engage RB Rangata Attorneys was raised. However, none was granted.
“We have not even reached that stage where we say there must be a deviation, we have said state attorneys must be used. I know there was talk of seeking one, I know that one was not granted,” he said.
“I don’t have powers to approve deviations post facto.”
He added that he had heard that the firm was prepared to waive a fee for handling the matter, on the understanding that it would be briefed again in future. The state could not be held to such, he stressed, and it still leaves the matter of the costs order.
Government sources have suggested that in the end, the costs will likely be paid by the office of the chief justice.
This would see a state department assume responsibility for a decision the chief justice did not take as the head of that department, but as the former chair of a now defunct entity, and risk unauthorised expenditure, as Zondo was cited in the latter capacity. Pandelani asked whether procurement rules were respected in the process.
But the case also raises wider questions as to how the state handles legal challenges to the findings of the country’s many commissions of enquiry, and how it accommodates the understandable concern of judges, sitting or retired, that their work, and by extension their integrity, should be ably defended in court.
In Zondo’s case, these may be particularly acute because he recommended the investigation of senior serving members of the ruling party, among them its chairman Gwede Mantashe and first deputy secretary Nomvula Mokonyane.
Said Mbekezeli Benjamin of Judges Matter: “It’s an anxious place to be, for judges to wait for the state to defend their integrity in post-inquiry litigation.
“Perhaps a judge filing an explanatory affidavit is a solution but seeing the Chief Justice actively involved in litigation to defend the state capture report as alleged raises separation of powers concerns. We hope the judiciary adds a section in the Judicial Code to provide ethical guidelines for judges undertaking this work.”
A dozen legal challenges to the report have been brought. One was dismissed but the rest remain before court. The litigants include former Eskom chief executive Matshela Koko, whom the commission implicated in the Trillian scandal.
It was described by Zondo as a scheme to exploit Eskom and benefit Essa, who has claimed in court papers that he is not a fugitive but resides in the United Arab Emirates for professional reasons. It is reliably understood that he is under active investigation and that the National Prosecuting Authority will seek his extradition once he is indicted.