South Africa

Days of Zondo Newsflash

Pulling a Zuma: Auswell ‘tall trains’ Mashaba defies the Zondo Commission and lands in hot water

Edward Riba, Kgabo Mokwele and Ntombizodwa Mahlangu (not pictured) were the only volunteers still patrolling at Pienaarspoort train station when GroundUp visited on 18 August 2021. (Archive photo: AM Consulting Engineers, accessed via Internet Archive.)

Deputy Chief Justice Raymond Zondo on Wednesday instructed the secretary of his commission to lay a criminal complaint against former Swifambo director Auswell Mashaba for not pitching up, saying if those called to testify did not do so, it would lead to ‘chaos’ in the commission and the courts.

“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.

Auswell Mashaba, former head of Swifambo, supplier of the notorious locomotives to the Passenger Rail Agency of SA, failed to appear at the Zondo commission on Wednesday. (Photo source: AM Consulting Engineers, accessed via Internet Archive.)

“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. 

Gravy Trains: R500m from failed Prasa locomotives deal ‘fraudulently’ funnelled to trust, private accounts and properties

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



Comments - Please in order to comment.

  • Chris Green says:

    A Luta Continua – and so the rallying cry has gained a new foothold, hopefully a perilous one. Clear positions are starting to appear as those involved attempt to read the future political landscape. What is ingested to assist with a good night’s sleep – a taste of “Tweety bird’s” chalice, maybe !! We fast approach the end of the benninngin, and ‘ the movement’ splinter is obvious.

  • Coen Gous says:

    I watch listened to this on YouTube, and I found the arguments of Mashaba’s lawyers as laughable. They were worse than Zuma’s attorneys. These guys soon won’t have any clients, accept the blatant criminals But what I would lie to know from someone, is, what is the difference of laying a criminal complaint vs. laying a criminal charge?.

  • Glyn Morgan says:

    Viva Zondo and his Team!

  • Wendy Dewberry says:

    Clever !

  • Sergio CPT says:

    This is going to be the go to position of these RET and state capture scoundrels.
    A very dangerous and serious precedent has been set by the thief-in-chief and if allowed to pass, will be the unraveling of law and order in this country, already in dire straights. SA will become a gangster and predatory state – lawless, corrupt to the core and ruled by thugs.

  • Jennifer Snyman says:

    This is not a rhetorical question, I am actually confused. Why can a criminal case be brought this time but Zuma’s refusal has to get taken to the Constitutional Court?

    • Andrew Blaine says:

      George Orwell put it best in Animal Farm”All animals are equal but some are more equal than others!”

    • Bradley Harber says:

      In addition to non-compliance with the summons served on him, Zuma’s no-show was also a failure to comply with an order given to him by the Constitutional Court. Both complaints are criminal in nature.

  • Andrew Blaine says:

    The Commission are getting the same treatment from the miscreants as Chamberlain got from Hitler in 1939. What is(was) the response likely to be to enforcement?

  • Avlon Ferreira says:

    If the door of “wrongdoing” is left open after one has passed through it, why would we think others will not do the same?

  • Christopher Campbell says:

    As well as any punishment for defying a summons they must be held responsible for the costs of the delay. It’s nonsense that the commission has to apply for extensions at a cost to the tax payer when these people think that they can do what they want.

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