Former deputy finance minister Sfiso Buthelezi plans to proceed with a court bid seeking to scrap parts of the commission of inquiry into allegations of state capture despite chief justice Mandisa Maya not granting permission for the litigation against former chief justice Raymond Zondo. Buthelezi and former Passenger Rail Association of South Africa (Prasa) board members Bridgette Gasa, Nkosinathi Khena, Mmatebogo Nkoenyane and former Prasa CEO Lucky Montana want parts of the commission’s report detailing allegations of maladministration at Prasa declared unlawful and irrational and set aside. Though the review application was initiated in 2022, the case was delayed because the applicants did not cite Zondo, who was the commission’s chair. Another defect flagged was that there was no permission from the chief justice before the litigation against Zondo, a retired justice, was initiated. The Superior Courts Act requires litigants in civil proceedings to seek permission from the head of the court before litigating against a judge. The applicants’ attempt to mend the defect was dealt a blow after their request seeking permission to litigate against Zondo was rejected. Buthelezi told Business Day the request was refused, with the chief justice citing it was only made years after the civil litigation was initiated. The law states that no proceedings may be instituted without permission; the procedural ground in the refusal is the timing. Buthelezi said despite not having permission, the applicants would proceed with the review application. “The chief justice said she cannot give permission, but that does not mean it is the end of the story. We are proceeding with the application in court,” he said. Former chief justice Raymond Zondo's commission of inquiry into allegations of state captured faces a legal test. File photo: (FREDDY MAVUNDA) The applicants’ main contention against the commission’s report relates to the chapter that deals with Prasa. The applicants have made a specific prayer to set aside the commission’s recommendation for the national director of public prosecution to consider instituting prosecution against Buthelezi, Gasa, Nkoenyane, Montana, Khena, Marissa Moore and Mfanyana Salanje, who recommended approval of an irregular R3.5bn Prasa locomotives contract. The tender was awarded to Swifambo Rail and was found by different courts to have been irregular because it was tainted by corruption. Former Prasa board chair Popo Molefe testified at the commission that Swifambo chair Auswell Mashaba allegedly paid about R79m in 2015 to the ANC after the multibillion-rand tender was approved. The same recommendation was made in terms of the R2.8bn worth of tenders awarded to Prasa service provider, Siyangena. The applicants seek to make the same argument as minister Gwede Mantashe in the case against Zondo before the Supreme Court of Appeal: that the shield offered to judges under section 47 of the Superior Courts Act for litigants to seek permission does not apply to judges when presiding over commissions. Minister Gwede Mantashe wants the Supreme Court of Appeal to decide on his appeal application against former chief justice Raymond Zondo’s state capture report. (Veli Nhlapo/File/Shelley Christians) The same question over the section is before the Constitutional Court in the litigation by former presidents Thabo Mbeki and Jacob Zuma against retired justice Sisi Khampepe.Buthelezi said the applicants would argue it was not necessary for them to seek permission and that the court could decide on the merits of the case without the procedural defects raised by Zondo. “We do not believe we needed to apply to the chief justice. We think when we think he [Zondo] is a commissioner, he cannot hide behind this thing [section 47] that he is a judge. “We would like to take it up to the highest court. We will go to the Constitutional Court with that argument. It cannot be; otherwise, judges should not be commissioners and hide behind this thing [section 47],” he said.