Swifambo, which bagged the contract in 2013, will, therefore, have no further legal recourse to salvage a deal that was found to have been corrupt in earlier court rulings.
“The Constitutional Court has considered this application for leave to appeal. It has concluded that the application should be dismissed as it bears no reasonable prospects of success,” reads a ConCourt order dated 2 May 2019.
The ConCourt dismissed Swifambo’s leave to appeal with costs.
In July 2017, Johannesburg high court Judge EJ Francis ruled that Prasa had awarded the contract to Swifambo through a “corrupt tender process” and that Swifambo acted as a front for Vossloh España, the Spanish manufacturer of the troubled Afro4000 locomotives, 13 of which were delivered to South Africa (70 locomotives were ordered in total). The high court ruled that the contract needed to be set aside.
Swifambo took the matter to the Supreme Court of Appeal (SCA), where the company was subjected to another legal lashing at the end of 2018.
The SCA agreed that “the tender was procured through corruption” and that Prasa’s specifications for the new locomotives were “tailor-made for the benefit of Vossloh, and thus Swifambo”. It also affirmed the high court’s decision that Swifambo had been part of a “fronting practice”.
The SCA confirmed that the Afro4000 locomotives Swifambo delivered to Prasa were not suited for South African railway lines, as first revealed by Rapport newspaper in 2015.
Citing various engineering reports, the SCA ruled that the Afro4000s “exceeded the vehicle structure gauge height required for diesel locomotives.”
Swifambo went into liquidation shortly after the SCA ruling.
Auswell Mashaba, the company’s former managing director, did not want to comment on the Constitutional Court’s decision.
“As you may be aware, Swifambo is under liquidation. I am no longer involved in its affairs, forward your queries to the liquidators,” said Mashaba.
Earlier investigations by this reporter showed that Mashaba may have used some of the proceeds of the train deal to purchase properties worth about R50-million.
Five days after Prasa made its first payment to Swifambo in April 2013, another company owned by Mashaba bought three parcels of land and an upmarket game lodge near Hoedspruit in Limpopo. Other properties were later bought by Mashaba and were all paid for in cash.
Swifambo also funneled about R80 million to Angolan businesswoman Maria Gomes – a friend of former President Jacob Zuma – and to lawyer George Sabelo, a business partner to one of Zuma’s sons.
Criminal cases have been opened in regard to Swifambo’s financial affairs, but thus far the Hawks and the NPA appear to be no nearer to arresting or prosecuting individuals involved in a deal that has been labelled as corrupt in consecutive court rulings.
Prasa spokesperson Nana Zenani said the SOE could not immediately comment on the Constitutional Court’s decision. Daily Maverick will add Prasa’s response once it has been received. DM
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