24 February 2021
On Wednesday morning, Auswell Mashaba, former head of Swifambo, the supplier of notorious too-tall trains to the Passenger Rail Agency of South Africa, defied a summons to appear before the Judicial Commission of Inquiry into Allegations of State Capture.
Mashaba had been called to testify about his involvement in the R3.5 billion contract which was set aside by the High Court and Supreme Court of Appeal.
Justice Raymond Zondo has instructed the secretary of the commission to lay a criminal complaint against Mashaba for his failure to appear.
Evidence leader Advocate Vas Soni read out a letter from Mashaba’s attorneys saying he would not be appearing before the commission. The letter argued that the summons was not a lawful and legally-binding document.
But Soni said that while Mashaba may challenge the summons in court, he may not simply ignore it. Soni and Zondo noted that the summons could not be challenged on procedural grounds. Failure to comply without sufficient cause constitutes an offence under the Commissions Act. Zondo noted noted that Mashaba’s attorney did not put up any factual or legal grounds for his client’s view that the summons was invalid.
He said Mashaba’s disrespect and unlawful conduct should not go unpunished.
Mashaba’s absence is the culmination of a series of exchanges between him and the commission and Mashaba’s challenge to the validity of the summons mirrors the approach taken by Zuma.
Soni said the commission had dealt with an identical situation last week with former President Jacob Zuma’s non-appearance.
Soni pointed out that last week Zondo had anticipated that Zuma’s conduct might start a trend of others ignoring the commission, which appeared to be confirmed now by Mashaba’s action. Such behaviour might defeat the objectives of the commission, said Zondo.
Zondo said: “This conduct by anybody of defying a summons to appear before the commission without having gone to court to have it set aside … is totally unacceptable. Everything should be done by the commission and the law enforcement agencies to put a stop to it.”
“If it spreads, it will be the beginning of chaos in our legal system. If it spreads, soon it will be happening in the magistrates courts, the high courts, because it would seem that sections in our society would believe it is acceptable conduct to defy a summons … Employers in the Labour Court would defy it when required to appear there. It is going to mean chaos.”
Mashaba’s affidavit submitted to the commission included an admission that he paid R80 million to a person purporting to represent the ANC.