Application to keep Zondo report from Ramaphosa an ‘abuse of court process’

Judge Avrielle Maier-Frawley High found it was 'neither the time or place' to debate whether the President was implicated in the report.

Johannesburg High Court Judge Avrielle Maier-Frawley has found Democracy in Action’s (DIA’s) failed eleventh-hour bid to interdict the official handover of the Zondo report, was an abuse of the court process.

Last Tuesday – with just hours to go before the handover – Maier-Frawley dismissed with costs an urgent application the group had filed the day prior, in which it had argued President Cyril Ramaphosa Ramaphosa was implicated and so shouldn’t receive the State Capture of Inquiry’s report.

Zondo report received by Ramaphosa

This despite the fact that former public protector Thuli Madonsela in her State of Capture report mandated the commission’s report be received by the President – and further that the handover was merely ceremonial in nature, with Ramaphosa having already received an electronic copy on 31 December 2021.

While she said at the time she was dismissing the application because any alleged urgency was self-created, Maier-Frawley only provided the reasons in full behind her order on Monday.

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In court, DIA said it first reached out in writing to the commission to express its reservations about Ramaphosa receiving the Zondo report on 16 January 2021, but received no response. The judge honed in on this in finding the application was an abuse of the court process.

“More so, in circumstances where, on its own version, [DIA] held the considered view in January 2021 that the President should be prevented from receiving the commission’s report, yet it failed to explain why it took no legal steps to vindicate its standpoint or to protect its alleged rights when its letter of 16 January 2021 [to the commission] met with no response,” she said.

She also found DIA had been less than upfront when it initially asked the court to enrol the matter, citing the announcement of the official handover as the catalyst for it going to court.

“To put it plainly, the respondents were brought to court on extremely short notice for reasons that later turned out to be unjustifiable,” she said.

When it came to costs, meanwhile, Maier-Frawley – who ordered DIA foot the bill – found it was in fact “neither the time nor the place now to debate whether the President is implicated or not”.

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“The proper place for an assessment of any evidence which may exist in implicating the President is the Commission’s report itself,” she said.

In coming to her decision, she said she had considered that were she to apply the Biowatch principle – which provides parties litigating against the state on constitutional issues should generally be spared from adverse cost orders, even if they lose – the taxpayer would ultimately wind up playing.

“Having found that the application constitutes an abuse of the process, it seems to me that such a result, in the light of [DIA’s] conduct in pursuing the application on grounds of self-created urgency by deliberately waiting until the last moment to assert its rights in circumstances where [DIA] had long known about all the facts which underpin the case for urgency, would not be just or fair,” she said.

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State Capture Commission of Inquiry