Zondo report prevails in urgent legal review

For the first time, a court has dismissed an urgent legal review of chief justice Raymond Zondo’s state capture report.

The case was brought by a lawyer who Zondo recommended for further investigation over suspected fraud involving the state’s diamond company, Alexkor, and Gupta associate Kuben Moodley.

Attorney Duncan Korabie filed the urgent review application after he was named in the report over his role in a prospecting business deal in Richtersveld in the Northern Cape. But on Tuesday he lost his challenge to the inquiry as well as to its chair and the president.

Western Cape high court judges Nape Dolamo and Hayley Slingers found Korabie’s review was “not ripe for hearing at this stage” and he had not made out a case. They reasoned he could weigh in during further possible investigations and/or litigation.

“The doctrine of ripeness ensures that courts address issues which have crystallised and not with prospective or hypothetical issues,” they wrote.

At issue was the joint venture between Alexkor and Richtersveld Mining Company (RMC), called the Pooling and Sharing Joint Venture (PSJV), which had been established to explore land and marine mining prospects. RMC represented the local community’s interests and Korabie served on RMC’s board and later worked as the community’s legal adviser.

Korabie was part of the tender committee that selected Skarlet Sky Investments 60 (SSI), ostensibly on the grounds that it was the only bidder that provided for community beneficiation. But he told the high court that he “vehemently objected” to the committee choosing SSI without due diligence.

In his version, Korabie said he understood from RMC director Willie Vries that Alexkor’s board chose SSI in a round robin in March 2015. He investigated SSI and found so-called Gupta fixer Moodley and Daniel Nathan had been appointed SSI directors soon before bidding occurred.

Dolamo and Slingers wrote:

“This company [SSI] had no track record in the diamond industry, nor was it a diamond licence holder, which was one of the prerequisites for tendering the services required by PSJV.”

Korabie filed a complaint with the public protector in 2015, resubmitted after a meeting with then public enterprises minister Lynne Brown attended by Alexkor and RMC.

Years later, Korabie got a notice from the Zondo commission asking him to provide documents on the PSJV. An inquiry investigator later phoned him, noting Korabie wanted to testify and confirming he still had a copy of his public protector complaint. “According to the applicant, this was the last he heard from the commission,” read the judgment.

Zondo recommended law enforcement agencies investigate with a view to prosecuting Alexkor’s board, Korabie and others from RMC to establish if they breached their fiduciary duties. Dolamo and Slingers found Zondo’s recommendations were not final and investigations could clear Korabie of liability. “It is very probable that if the recommendations for further investigations are accepted, that the applicant will be approached to provide his version to the complaints and recommendations,” they wrote.

Korabie asserted “unfounded adverse findings against him constitute an egregious and continuing violation”, which affronts his dignity and threatens his work. But the court said he did not provide evidence to back these points, and “makes the bold allegation that he has suffered severe and ongoing psychological distress”.

“The applicant’s affidavit is phrased in general and vague terms, and is not supported by facts and/or evidence.

“Furthermore, the applicant has not set out any reasons why he would not be able to get substantial redress if the matter was heard in the normal course.”

The judgment is the first reported (formally published) ruling following an urgent legal review of the high-stakes report. The decision suggests the doctrine of ripeness will pertain to any future review bids, including those from any of the many politically exposed people implicated in the report.

1 bidder provided for community beneficiation, according to the tender committee 2015 the year a complaint was made to the public protector