Johannesburg - An ANC funder is due to go head-to-head with the commission of inquiry into state capture at the North Gauteng High Court over an allegedly defective subpoena.
Businessman Auswell Mashaba, who has won lucrative contracts at the Passenger Rail Agency of SA (Prasa), was subpoenaed by the commission headed by then Deputy Chief Justice Raymond Zondo last year but defied the demand that he give evidence.
Mashaba has previously admitted paying R80 million to the ANC after his company Swifambo Rail was awarded a R3.5-billion tender to deliver locomotives to Prasa in 2012.
”I was forced to pay R80m to people who said they were collecting money for the ANC,” he told the commission in an affidavit he submitted, adding that he did not know if the governing party ever received the money.
Soon after his refusal to testify at the inquiry, it threatened to urgently lay criminal charges against Mashaba, but it has now emerged that the promised move was never carried out.
Mashaba then headed to the North Gauteng High Court in Pretoria to have the subpoena reviewed and set aside.
He complained that the subpoena did not contain all the necessary information.
According to Mashaba, the subpoena also did not comply with the Commissions Act and did not sufficiently draw his attention to his rights and obligations.
The matter has not been heard by the court after Mashaba initially failed to properly file his application and did not notify the commission as stipulated in the rules.
As a result, Acting Judge Irene de Vos this week found that the commission’s inaction paved the way for Mashaba to seek relief in the unopposed court.
”If the issuance of a subpoena in the commission is reviewed and set aside, it potentially holds consequences for other subpoenas the commission has issued over the years.
“The matter is therefore one of public importance. It is exactly the type of matter that cries out for the filing of a rule 16A notice. On this basis alone, it would be appropriate for the court to postpone the matter to permit the applicant (Mashaba) to comply with rule 16A,” Acting Judge de Vos stated.
Uniform rule 16A requires a party raising a constitutional issue to prepare a rule 16A notice containing a clear and succinct description of the constitutional issue raised.
After the notice is stamped by the registrar it must be posted on a dedicated noticeboard in the relevant high court.
Among the purposes of a rule 16A notice is to inform those who may be interested in the constitutional challenge of the challenge.
On Tuesday, Acting Judge de Vos postponed the matter sine die (indefinitely) in order for Mashaba to comply with rule 6(5)(b)(iii) of the uniform rules of court by providing the commission with a stated day on which his relief will be sought.
The rule states that in a notice of motion, an applicant must set forth, not less than five days after service thereof on a respondent, on or before which such respondent is required to notify the applicant, in writing, whether the respondent intends to oppose such application.
The applicant must further state that if no such notification is given the application will be set down for hearing on a stated day, not less than 10 days after service on the respondent.
In his final report, Justice Zondo recommended that the National Prosecuting Authority should speed up Mashaba’s prosecution following investigations by the Hawks.