Court rules that #UniteBehind be added to PRASA corruption case

The “too-tall” AFRO-4000 locomotive, supplied to PRASA by Spanish rail company Vossloh España, via Swifambo, a front company. Photo: Col André Kritzinger, CC BY-SA 3.0

• Commuter activist organisation #UniteBehind is to join court proceedings in which former members of the board of the Passenger Rail Agency of South Africa (PRASA) are seeking to review and set aside findings of corruption against them by the Zondo Commission of Inquiry into State Capture.
• The board members, implicated in the plundering of PRASA, initiated their review application in the Johannesburg High Court in 2022.
• This followed the release of the Zondo Commission report by Judge Raymond Zondo.
• #UniteBehind will present and challenge evidence in the review.
• Acting Judge Naki Stylianou said that it was evident that #UniteBehind “has a formidable track record of prior involvement in matters relating to corruption and maladministration at PRASA”.

Commuter activist organisation #UniteBehind has been given a judicial nod to join proceedings in which former members of the board of the Passenger Rail Agency of South Africa (PRASA) are seeking to review and set aside findings of corruption against them by the Zondo Commission of Inquiry into State Capture.

As opposed to the role of an amicus curiae (friend of the court) to “assist the court”, #UniteBehind is now a respondent in the case. This means they can present and challenge evidence in the pending review.

In his court application, #UniteBehind founder and veteran activist Zackie Achmat said the organisation wants to protect the state capture report and its findings against the PRASA officials, including former CEO Lucky Montana and board members Sfiso Buthelezi, Bridgette Gasa, Nkosinathi Khena and Mmatebogo Nkoenyane. “More information and evidence regarding their responsibility and complicity will be added in our answering affidavit in the main application, if leave to intervene is granted,” he said.

The board members, implicated in the plundering of Prasa, initiated their review application in the Johannesburg High Court in 2022. This followed the release of the Zondo Commission report by former Chief Justice Raymond Zondo.

The board members initially cited only the Commission and PRASA as respondents. However, Judge Zondo himself is now the third respondent and, following this week’s ruling by Acting Judge Naki Stylianou. #UniteBehind will be the fourth respondent.

#UniteBehind’s application was opposed by the former board members who are seeking an order that some findings and recommendations of the Zondo Commission be declared unlawful, irrational and unconstitutional.

They argue that they were not given an opportunity to challenge the evidence.

In his ruling, Judge Stylianou said that Achmat had explained that #UniteBehind’s had a direct and substantial interest in the review, and that it is in the public interest and in the interests of justice that it be joined “in a proper sense” to the proceedings.

Achmat had submitted that #UniteBehind could demonstrate that some factual allegations made by the former board members were incorrect. He had cited a long track record of campaigns to end corruption and maladministration at the rail agency. #UniteBehind had also assisted the state capture commission when it dealt with the PRASA issues.

Judge Stylianou said in matters which implicated constitutional values, courts had adopted a “more generous approach” to intervention by parties acting in the public interest.

He said #UniteBehind had relied on a court decision in a review application by (now impeached) Western Cape Judge President John Hlophe in which he sought to set aside a finding of gross misconduct against him by the Judicial Service Commission. In that matter, Freedom Under law had been granted permission to be joined as a respondent.

Judge Stylianou said in terms of that ruling, #UniteBehind ticked all the boxes. It was a bona fide public interest organisation which sought to uphold constitutional norms; the issue in the review was of “profound constitutional importance”; and the organisation had had some prior involvement in the dispute.

He said #UniteBehind had submitted that it was “striving at its own cost” to ensure the findings and recommendations of the commission were implemented without further delay. “It is evident that it has a formidable track record of prior involvement in matters relating to corruption and maladministration at PRASA in general and in particular, in respect of the dispute before the review court.”

He ordered that #UniteBehind be joined as the fourth respondent and that the opposing former board members pay the costs of the application.

In a separate matter, GroundUp reported last month that Open Secrets is taking the Hawks and the National Prosecuting Authority (NPA) to court for their failure to investigate and prosecute corruption at PRASA. Open Secrets singled out PRASA contracts with Siyangena Technologies and with Swifambo Rail Leasing, involving billions of rands. One of the people alleged to have benefitted was Lucky Montana, PRASA Group CEO from 2010 to 2015. #UniteBehind says it will also be joining this matter.

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