“It is just going to mean chaos [if summonses are defied]. The secretary of the commission is instructed to lay a criminal complaint against Auswell Mashaba for his failure to appear before the commission today in accordance with the terms for the summons that was served on him. The [commission’s] legal team is requested to assist the secretary to prepare the necessary affidavit or statement,” said Zondo.
He had been discussing Mashaba’s defiance of the summons – issued on 10 February – with Passenger Rail of South Africa (Prasa) evidence leader, advocate Vas Soni.
“This conduct by anybody… without having gone to court to set it aside if someone thinks the summons is irregular, is totally unacceptable. Everything should be done by the commission and law enforcement agencies to put a stop to it, because if it spreads, it will be the beginning of chaos in our legal system.
“Soon it will be happening in magistrate’s courts, in high courts throughout the country, because it would seem that sections in our society will be believing that it is acceptable conduct to defy a summons,” said Zondo.
Mashaba had previously complied with the filing of an affidavit.
In 2012, the now liquidated Swifambo landed a R3.5-billion contract to supply 70 trains to Prasa. Only 13 were delivered, and they were deemed too tall for the country’s rail infrastructure.
As previously reported by Daily Maverick, hundreds of million of rands from the contract were allegedly used in a looting spree that included money being paid towards the purchase of a mansion, controlling stakes being bought in wine and olive farms, and payments being made to various acquaintances of Mashaba.
During testimony before the commission last year, former Prasa board chairperson, Popo Molefe, said Mashaba had told him that some of the money was for the ANC (described to Molefe as “the movement”).
Soni told Zondo on Wednesday: “[Mashaba said:] I was forced to pay money to people who said it was for the ANC, but I don’t know if it went to the ANC. I paid the money.”
Regarding Mashaba’s no-show, Soni told Zondo: “A point you made last week Monday [when former president Jacob Zuma did not appear before the commission in defiance of a Constitutional Court ruling] was that this would lead to more defiance. We therefore submit the matter must be formally dealt with….”
Zondo and Soni discussed the reasons – or absence thereof – for the businessman’s defiance of the summons. Soni read into the record portions of correspondence from Mashaba’s legal team, received on Wednesday morning, which stated: “Our client won’t be appearing before the commission today, for the reason that our client does not accept that the document constitutes a lawful and legally binding summons.”
After further deliberation, Zondo said this was the same reason given by the former president for his non-appearance last week.
“I note that in the letter, Mr Mashaba’s attorney doesn’t put up any legal grounds or his client’s view… [as to why the summons is not a valid summons]. Zuma’s attorney also did that last week. They said the summons was irregular. So this witness is basically doing the same. We may well see more of this. I hope not.”
On Monday, the commission approached the Constitutional Court to force Zuma to testify (as the court had ruled he should) or face a jail term of up to two years, saying that as a former president, Zuma held sway over society and had to set an example. Zuma has been implicated by 40 witnesses in alleged acts of wrongdoing related to so-called State Capture.
Soni took Zondo through the records showing that the summons had been served on Mashaba, but stressed that this was not the issue. The issue was his defiance.
Accountant and director at Crowe Forensics SA (Pty) Ltd, Ryan Marc Sacks, started his testimony after the tea break. Sacks conducted a forensic investigation into the Swifambo debacle on behalf of the Hawks.
The Zondo Commission was appointed in January 2018 via proclamation, and was initially intended to sit for only 180 days.
It has twice had its lifespan extended, the latest being to 30 June, Zondo said on Tuesday. The last three months are meant for Zondo to write up his report. DM
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