Essa v Judicial Commission of Inquiry into State Capture and Another (2022/009834) [2025] ZAGPJHC 1314 (30 December 2025)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: South Gauteng High Court, Johannesburg South Africa: South Gauteng High Court, Johannesburg You are here: SAFLII >> Databases >> South Africa: South Gauteng High Court, Johannesburg >> 2025 >> [2025] ZAGPJHC 1314 | Noteup | LawCite sino index ## Essa v Judicial Commission of Inquiry into State Capture and Another (2022/009834) [2025] ZAGPJHC 1314 (30 December 2025) Essa v Judicial Commission of Inquiry into State Capture and Another (2022/009834) [2025] ZAGPJHC 1314 (30 December 2025) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPJHC/Data/2025_1314.html sino date 30 December 2025 IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, JOHANNESBURG CASE NO: 2022-009834 (1)  REPORTABLE: YES (2)  OF INTEREST TO OTHER JUDGES: YES (3)  REVISED: NO D MLAMBO 30 DECEMBER 2025 In the matter between: SALIM AZIZ ESSA                                                         Applicant And JUDICIAL COMMISSION OF INQUIRY INTO STATE CAPTURE                                                          First Respondent RAYMOND MNYAMEZELI MLUNGISI ZONDO N.O.                                                                  Second Respondent Delivered: This Judgment was handed down electronically by circulation to the parties’ legal representatives by email and by uploading to Caselines and release to SAFLII. The date and time for hand down is deemed to be 10:00 am on 30 December 2025. Summary: Interlocutory application by Respondents – Respondents seek dismissal of Applicant’s review application (“main application”); alternatively, that the review application be stayed pending Applicant’s furnishing security for costs (Rule 47) – Virtual commissioning of Applicant’s affidavits discussed; Court finds that there was substantial compliance with the Regulations in the commissioning (that the Regulations are “directory and not peremptory”) – Respondents argue that Applicant is a fugitive of justice (clean hands doctrine) and that Court should not come to his aid; Applicant states that there were no pending charges against him at the time he left the Republic, that he left for personal reasons; moreover, that his payment of the security for costs disposed of the interlocutory application – Court finds the timing of the Applicant’s departure, after incriminating revelations (from the Public Protector’s Report), supports finding of fugitive status (notwithstanding the absence of formal charges against the Applicant at the time); it is apparent that a reasonable apprehension of future legal action was a catalyst for the Applicant’s departure; moreover, that providing security for costs is not a blanket exoneration of fugitive status – Respondents’ interlocutory application upheld – Applicant’s review application dismissed. ORDER 1.  Condonation for the late delivery of the Applicant’s answering affidavit is granted. 2.  The Applicant’s answering and supplementary affidavits are admitted into evidence. 3.  The Respondents interlocutory application succeeds. 4.  The review application under case number 2022-009834 launched on 2 August 2022 by the Applicant against the Respondents is dismissed. 5.  The Applicant is ordered to pay the costs of this application, including the costs of two counsel where so employed on scale C. JUDGMENT MLAMBO, JP Introduction [1]  The applicant (Mr Essa) launched an application to review and set aside parts 1 to 6 of the first respondent’s (the Commission) Report titled “ Judicial Commission of Inquiry into State Capture Report ” (the report). In the alternative, Mr Essa seeks an order reviewing and setting aside such parts of the report in which findings and/or recommendations are made regarding him. [2] The application is opposed by the respondents. [1] To this end, the Commission filed its notice of intention to oppose on 18 August 2022. It is worth noting that the respondent did not file an answering affidavit in support of its opposition of the review application. Instead, the Commission instituted an interlocutory application in which it sought the dismissal of the review application, alternatively, that the applicant be directed to pay security for the respondents’ costs in the review application, in an amount of R 5 000 000.00. [3] This Court is therefore required to consider the interlocutory application and dispose of it first before the main review application is set down for hearing. Background [4] Given that the order the respondents seek may potentially be dispositive of this matter in its entirety, necessity dictates that the background be briefly stated. The Commission was set up pursuant to the Public Protector’s report on “State Capture” dated 14 October 2016, investigating complaints of alleged improper and unethical conduct by the then President of South Africa, Mr Jacob Zuma, and other state functionaries relating to the involvement of the Gupta family in the removal and appointment of ministers and directors of State Owned Entities (SOEs) resulting in Gupta-linked companies and their associates improperly benefitting from the State’s largesse. [5] Mr Essa (and his companies) was identified as a key figure in the orchestration of State Capture. He was also implicated in corruption involving SOEs Eskom and Denel in two other inquiries, the first being the Report of the Portfolio Committee on Public Enterprises [2] implicating him in the siphoning of R 600 million from Eskom through the entities Trillian Capital Partners (Pty) Ltd and Trillian Holdings (Pty) Ltd; and the Fundudzi Reports for the National Treasury [3] implicated Mr Essa in influencing the appointment and composition of board members of Eskom and other SOEs. [6] Various recommendations were made in these reports including further investigations as well as criminal investigations against the perpetrators of state capture, including Mr Essa. [7] In 2017 Mr Essa and his family relocated from South Africa to Dubai for, on his version, legitimate business reasons and better educational prospects for his children. When the Commission began its work in January 2018 it appears that it did not yet know that Mr Essa was no longer in the country. [8] It is against this background that this matter must be understood. The Interlocutory Application [9] In this interlocutory application, the respondents seek an order dismissing Mr Essa's review application with costs on the basis that Mr Essa is a fugitive from justice. Alternatively, they seek an order that Mr Essa provide security for their costs in the review application. [10]  The interlocutory application was served on Mr Essa on 02 February 2023. On 08 February 2023, Mr Essa caused a notice of his intention to oppose to be served via email. This meant that he had a period of 15 days within which to deliver an answering affidavit. On 2 March 2023, the respondents addressed a letter to Mr Essa’s attorneys advising them of the due date for the answering affidavit and also affording Mr Essa time until close of business on 2 March 2023 to deliver his answering affidavit. [11] It is common cause that Mr Essa filed his answering affidavit in May 2023. In the answering affidavit, Mr Essa acknowledges the fact that the affidavit has not been delivered timeously, and in the circumstances, seeks condonation for the late delivery of the answering affidavit. [12] On the merits, Mr Essa avers that the interlocutory application was brought in terrorem and in an attempt to stifle the hearing of the review application which the respondents understandably fear may be granted in his favour. Mr Essa denies that he is a fugitive from justice. Regarding the alternative relief for an order for security for costs, Mr Essa tendered to provide security for the respondents’ costs on the basis that such amount is determined by the Registrar. [13] The Commission delivered its replying affidavit on 30 May 2023. To this end, the Commission raised an issue regarding the validity of the applicant’s answering affidavit, submitting it was irregularly commissioned. The Commission averred further that Mr Essa failed to advance valid reasons for the late delivery of his answering affidavit. [14] Subsequent to this, the Commission’s attorneys addressed correspondence to the applicant’s attorneys, on 6 June 2023, in which they sought to establish the availability of Mr Essa’s attorneys for a meeting with the Registrar to make submissions for the appropriate amount of security for costs, which the applicant in his answering affidavit had agreed to tender. [15] The Commission’s attorneys followed up on the above correspondence by filing a pro forma bill of costs on 3 November 2023 as a first step taken in the determining of the amount of security for costs to be provided by the applicant. On 17 November 2023, Mr Essa filed his notice of intention to oppose the pro forma bill of costs . [16] Thereafter, on 30 November 2023, the Commission’s attorneys addressed a letter to the registrar in which they sought an allocation of the matter regarding the bill of cost in regard to the security for costs. The Commission’s attorneys followed this by filing a request for taxation on 14 February 2024. Ultimately, the Commission’s attorneys obtained the date of 16 August 2024 for the taxation of the bill of costs. [17] The taxation of the bill of costs did not take place on 16 August 2024 and was instead postponed to 10 September 2024. On that day, the Taxing Master determined the amount of R 350 000.00 as the security for costs to be provided by the applicant. It was also determined that the amount was to be paid by the applicant into an independent attorney’s trust account within 20 court days. On 22 January 2025, Mr Essa’s attorneys paid the amount of R 350 000.00 into the trust account of Moche Attorneys, who were appointed as independent attorneys in line with the Taxing Master’s determination of 10 September 2024. [18] Based on the above developments, Mr Essa filed a supplementary affidavit to his answering affidavit on 27 January 2025. In the supplementary affidavit, Mr Essa avers that the respondents cannot persist with the interlocutory application and/or the dismissal of the review application since it is clear, from the developments regarding the security for costs, that the respondents’ entire interlocutory application has been resolved by the applicant’s payment of the security for costs. [19] Pursuant to this stance by Mr Essa, on 2 May 2025, the Commission filed its answering affidavit in response to Mr Essa’s supplementary affidavit. To this end, the Commission averred that the applicant’s supplementary affidavit is pro non scripto . Furthermore, that the supplementary affidavit is irregular and filed out of time. [20] On the merits of Mr Essa’s supplementary affidavit, the Commission avers that Mr Essa’s contention that the respondents’ entire interlocutory application has been resolved by his payment of the security for costs has no basis either in law or fact. Issues [21] Against this background, the following are the issues which are before this Court for determination: (a) Whether Mr Essa’s answering and supplementary affidavits were irregularly commissioned and therefore invalid. (b) Whether Mr Essa’s supplementary affidavit is pro non scripto. (c) Whether the late delivery of Mr Essa’s answering affidavit should be condoned. (d) Whether this interlocutory application was resolved consequent upon Mr Essa providing security for costs. (e) Lastly, whether the respondents’ have made out a case that Mr Essa is a fugitive from justice. [22] I now deal with each of these issues below. Irregular commissioning of the affidavits [23] The respondents’ objection to the authenticity of the applicant’s answering and supplementary affidavits arises from the fact that Mr Essa deposed to these affidavits virtually, i.e.  whilst he was seated in Dubai, and the commissioner of oaths was seated in South Africa and therefore not in the commissioner’s presence as required by the Justices of the Peace and Commissioner of Oaths Act, [4] and its accompanying Regulations. [5] Mr Essa insists that the whole process was done in substantial compliance with the Act and Regulations, particularly regulation 3(1). To demonstrate substantial compliance, an affidavit deposed to by Nicolai Andrei, the commissioner of the oath was delivered with Mr Essa’s supplementary affidavit setting out how the virtual commissioning process occurred. [24] The respondents, whilst expressly not abandoning their objection regarding the authenticity of these affidavits, elected not to advance any oral submissions on this aspect. This posture, taken by the respondents, does not mean this Court should ignore this objection. In any event, this objection formed part of what the respondents included in their pleadings. [25]  The authority of a commissioner of oaths to administer an oath or affirmation, is regulated by the Act and Regulations promulgated by the Minister of Justice in terms of section 10 of the Act, which prescribe how the oath or an affirmation is to be administered. In this regard, regulation 3 provides that the deponent shall sign the declaration in the presence of the commissioner of oath. Regulation 4(1) states that below the deponent’s signature or mark, the commissioner shall certify that the deponent has acknowledged that they know and understand the contents of the declaration, and they shall state the manner, place and date of taking the declaration. Regulation 4(2) provides that the commissioner shall sign the declaration and shall print their business address and full name below their signature. They shall also state their designation and the area for which they hold their appointment. [26] Whether virtual commissioning is permissible turns on the interpretation of regulation 3(1) of the Regulations. In Firstrand Bank Ltd v Briedenhann [6] the court held that the language of regulation 3 suggests that “in the presence” requires the deponent to append his signature in the physical presence or in proximity of the commissioner of oaths. [7] While acknowledging the rapidly evolving technological landscape in a post pandemic world, the court nevertheless held that it was for the Legislature to intervene should the use of such technologies such as video-link be recognised and accorded legal force. [8] [27]  In the absence of such legislative intervention, commissioning in the virtual presence of a commissioner is not recognised in the Regulation. [28] The case is made on Mr Essa’s behalf that there is now “judicial recognition of the relaxation of the requirement of the person to person” element in the administration of oaths. This is correct. There is widespread judicial acceptance that the Regulations are directory, rather than peremptory, and that if there is substantial compliance with the Regulations, a court has a discretion to allow the affidavit into evidence. [9] The court in Knuttel referred to S v Munn [10] where the Full Court confirmed that non-compliance with the Regulations does not per se invalidate an affidavit if there was substantial compliance with the formalities in such a way as to give effect to the purpose of obtaining a deponent’s signature to an affidavit. Taking these considerations into account and having regard to the extraordinary measures employed to commission the founding affidavit, together with the prevailing circumstances occasioned by the COVID-19 pandemic, the court in Knuttel concluded that there had been substantial compliance with regulation 3(1). The founding affidavit was accordingly held to be validly commissioned, albeit administered virtually. [11] [29] Textual strictures notwithstanding, courts retain a discretion to accept documents or evidence where it is satisfied as to authenticity or where the interests of justice demand. As noted in Briedenhann , this discretion is not unfettered and must be exercised judicially. [12] Recently , the Full Court of this Division followed this approach in Africa’s Best (Pty) Ltd v ED Food S.R.L. [13] Similar to the facts in this case, the founding and confirmatory affidavits in ED Food had been commissioned via video conference call, while the deponents were in Italy, and the commissioners were in South Africa. The court a quo exercised its discretion and admitted the affidavits on the basis of substantial compliance – the commissioners had detailed the steps taken to verify the identity of the deponents and observed the deponents sign. In the appeal, the focus was whether the court a quo properly exercised its discretion in accepting the affidavits. After assessing the authorities, the court noted that judges regularly exercise a discretion to condone non-compliance if there is substantial compliance with the Regulations. The discretion is not unfettered but must be exercised judicially upon a consideration of the facts and circumstances of each case including the interests of justice. The Full Court noted that the deponents to ED Food’s affidavits considered their signing to be relatively urgent and had no other reasonable means available to them to commission the affidavits in the presence of a commissioner of oaths in the ordinary sense. The court a quo was therefore not precluded from exercising its discretion to receive the affidavits where the regulations were substantially complied with, and it was in the interests of justice to do so. [30] In summary, the default position appears to be thus: - the oath must be administered in the physical presence of a commissioner, unless the physical presence can be shown to not be possible having regard to the facts at hand, in which case, the oath may be administered to the deponent virtually, in substantial compliance with the Act and Regulations . [31] In this case, it is common cause that the applicant resides outside of the Republic of South Africa. The reasons why he resides outside the Republic are of no matter (at this stage), since that is not a consideration for substantial compliance. It was therefore not possible for him to sign his answering and supplementary affidavits in the presence of the commissioner of oaths. Instead, the applicant deposed to his answering and supplementary affidavits in the virtual presence of the commissioner of oaths, Nicolai Andrei. To this end, a confirmatory affidavit by Andrei was delivered setting out the process whereby the applicant signed the answering affidavit and supplementary affidavit. Andrei confirmed that on the two occasions, Mr Essa appeared before him via WhatsApp video call, he satisfied himself as to his identity; Mr Essa confirmed the correctness of the affidavits; that had no objections to the oath and was the person who signed the affidavit, thereafter, the affidavit was commissioned by Andrei. [32] In my view, the above facts are sufficient for this Court to conclude that the commissioning of the applicant’s answering and supplementary affidavit were in substantial compliance with the Act and Regulations. I am of the considered view that, although Mr Essa was not physically in the presence of the commissioner of oath when signing the affidavits in question, the requirement of “ in the presence of” the commissioner of oaths in regulation 3(1) was substantially complied with, given that the Regulations are directory and not peremptory. [33] Accordingly, Mr Essa’s answering and supplementary affidavits are admitted into evidence. Whether Mr Essa’s supplementary affidavit is pro non scripto [34] The respondents’ other objection to Mr Essa’s supplementary affidavit forming part of the evidence before this Court is on the basis that it is pro non scripto . [35] In this regard, the Commission submits that Mr Essa’s supplementary affidavit had been filed outside of the normal three sets of affidavits permitted by the Uniform Rules of Court (the Rules). To this end, the respondents argue that the parties had exchanged three sets of affidavits allowed in motion proceedings after 1 June 2023, which is when the respondents filed their replying affidavit. [36] Despite this, Mr Essa simply took it upon himself to file a further affidavit without first obtaining the leave of the court to do so, as is required by rule 6(5)(e) of the Rules. Further, that Mr Essa did not make a formal application for leave to file a further affidavit, nor did he tender a satisfactory and acceptable explanation why his supplementary affidavit was filed both out of time and out of the permissible sequence. On this basis, the Commission argues that this Court should exercise its discretion against accepting the applicant’s supplementary affidavit. [37] Conversely, Mr Essa submits that the respondents' replying affidavit contains allegations that are manifestly new and were not made in the respondents' founding affidavit. Accordingly, instead of seeking to have the new allegations disregarded or struck out, Mr Essa delivered a supplementary affidavit dealing with the new allegations. [38] Mr Essa argues that given the materiality of the new allegations; he will be prejudiced if he is not permitted to address said allegations; and in the interests of justice the Court ought to, in the exercise of its discretion, accept his supplementary affidavit so that he can be able to answer the new allegations made by the respondents in their replying affidavit. [39] Rule 6(5)(e) provides Courts with a discretion to allow further affidavits or not to. In Hano Trading CC v JR 209 Investments (Pty) Ltd and Another , [14] it was held that rule 6(5)(e): “ establishes clearly that the filing of further affidavits is only permitted with the indulgence of the court. A court, as arbiter, has the sole discretion whether to allow the affidavits or not. A court will only exercise its discretion in this regard where there is good reason for doing so.” [15] [40] The long-standing practice that Courts could only exercise their discretion when an application to file further affidavits had been launched, has changed. The Court in James Brown & Hamer (Pty) Ltd (previously named Gilbert Hamer & Co Ltd) v Simmons NO, [16] set the new approach and held: “ It is in the interests of the administration of justice that the well-known and well-established general rules regarding the number of sets and the proper sequence of affidavits in motion proceedings should ordinarily be observed. That is not to say that those general rules must always be rigidly applied: some flexibility, controlled by the presiding Judge exercising his discretion in relation to the facts of the case before him, must necessarily also be permitted. Where, as in the present case, an affidavit is tendered in motion proceedings both late and out of its ordinary sequence, the party tendering it is seeking, not a right, but an indulgence from the Court: he must both advance his explanation of why the affidavit is out of time and satisfy the Court that, although the affidavit is late, it should, having regard to all the circumstances of the case, nevertheless be received. ” [17] [41] It is trite that a Court's discretion must be exercised judicially. The following factors must be taken into consideration in determining whether or not to allow a further affidavit as laid down in Porterstraat 69 Eiendomme (Pty) Ltd v PA Venter Worcester (Pty) Ltd : [18] “ (i) The reason why the evidence was not led timeously. (ii) The degree of materiality of the evidence. (iii) The possibility that it may have been shaped to "relieve the pinch of the shoe". (iv) The balance of prejudice, viz the prejudice to the plaintiff if the application is refused and the prejudice to the defendant if it is granted. (v) The stage which the particular litigation has reached. Where judgment has been reserved after all evidence has been heard and, before judgment is delivered, plaintiff asks for leave to lead further evidence, it may well be that he or she will have a greater burden because of factors such as the increased possibility of prejudice to the defendant, the greater need for finality, and the undesirability of a reconsideration of the whole case, and perhaps also the convenience of the Court. (vi) The "healing balm" of an appropriate order as to costs. (vii) The general need for finality in judicial proceedings. (viii) The appropriateness, or otherwise, in all the circumstances, of visiting the fault of the attorney upon the head of his client.” [19] [42] I do not intend to individually deal with all eight factors mentioned above. However, I am of the view that in the consideration of these factors, it is important for the Court to ensure that it exercises its discretion mindful of what the interests of justice require. Put differently, the ultimate decision should not bring the interests of justice into disrepute or prejudice them. If the Court is satisfied on these factors, it will generally be inclined towards allowing the affidavit to be filed. [20] [43]  Mr Essa’s explanation is that he filed the supplementary affidavit in response to the new allegations which the respondents introduced through their replying affidavit, which were not covered in their founding affidavit. Therefore, having already filed his answering affidavit, he realised that he would suffer prejudice if he does not respond to the new allegations. [44]  On this basis, Mr Essa seeks the indulgence of this Court to accept the supplementary affidavit so he can be able to address the new allegations. He submits that he did this to avoid seeking the striking out of the new allegations or that they be disregarded. He therefore seeks leave that his supplementary affidavit be allowed to avoid the prejudice he would suffer should he not be allowed to respond to the new allegations. [45]  The new allegations relate to an action instituted by Eskom and the SIU against Mr Essa as well as the allegation regarding the issuing of a warrant of arrest and indictment against him. They are therefore of a factual nature and refer to certain processes in which Mr Essa features. It is also clear from the respondents’ answering affidavit that these new allegations were introduced to support the respondents’ argument that the applicant is a fugitive from justice, which is the core ground which the Commission relies on in this interlocutory application. [46]  It would therefore be prejudicial to Mr Essa if he is disallowed from responding to the new allegations. It is correct that these occurrences were not specifically mentioned in the respondents’ founding affidavit. It is correct, as argued by Mr Essa, that it is in the interests of justice that he be allowed to answer these allegations. Mr Essa’s supplementary affidavit must therefore be accepted. [47]  My view is therefore that the supplementary affidavit filed by Mr Essa is not pro non scripto. Whether the late filing of Mr Essa’s answering affidavit should be condoned [48] Mr Essa seeks condonation for the late delivery of the answering affidavit. To this end, he submits that as a businessman, who is based in Dubai, his various business commitments placed him under considerable work pressure. As a result, he was unable to provide his attorneys with the necessary instructions in response to the respondents' application timeously. [49] Mr Essa further attributes the late filing to the unavailability of his attorney, David Swartz (Mr Swartz), whose father passed away on 17 February 2023, rendering him unable to attend to this matter (as well as other matters), during that period he had to observe the Jewish mourning period of seven days from Sunday, 19 February 2023 until Saturday, 25 February 2023. Furthermore, Mr Swartz also had to undergo major eye surgery on 28 March 2023 and again on 4 April 2023, which further prevented him from dealing with this matter. [50] Mr Essa contends that the review application brought by him is of significant importance, both to him and the broader public. He therefore submits that he ought not be deprived of the opportunity to have the review determined, nor the opportunity to defend the respondents' application, wherein serious allegations are levelled against him. [51] On this basis, Mr Essa argues that the delay in delivering the answering affidavit is not inordinate and cannot have caused any prejudice to the respondents. Furthermore, any prejudice that might have been caused to the respondents by the delay in delivering his answering affidavit is cured by the fact that his tender to provide security for the respondents' costs in such amount was determined by the Registrar. [52] The respondents submit that Mr Essa has failed to meet the requirements for granting of condonation to trigger the exercise of this Court’s discretion in his favour. To this end, the Commission submit that on 02 May 2023, the present application could not be proceeded with, by reason of Mr Essa’s belated purported answering affidavit. As a result, the respondents were then forced to file a replying affidavit to deal with the allegations in the purported answering affidavit, with which there is a fundamental defect. [53] The principle has been held to be firmly established that, in all cases of time limitation, whether statutory or in terms of the rules of court, the High Court has an inherent right to grant condonation in the interests of justice. [21] A similar approach to condonation was adopted by the Supreme Court of Appeal in circumstances such as the present. In this regard, the Supreme Court of Appeal in Mulaudzi v Old Mutual Life Assurance Company (SA) Limited [22] observed: “ Factors which usually weigh with this court in considering an application for condonation include the degree of non-compliance, the explanation therefor, the importance of the case, a respondent’s interest in the finality of the judgment of the court below, the convenience of this court and the avoidance of unnecessary delay in the administration of justice.” [23] [54] Courts have consistently refrained from attempting to frame any comprehensive definition of what constitutes good cause for purposes of granting of condonation for procedural shortcomings. Condonation is granted at the discretion of the Court, judicially exercised having regard to all the circumstances of the case. [24] Relevant factors in the enquiry generally include the nature of the relief sought; the extent and cause of the delay; its effect on the administration of justice and other litigants; the reasonableness of the explanation for the delay, which must cover the whole period of delay; the importance of the issue to be raised; and the prospects of success. The onus is on the applicant to satisfy the Court that condonation should be granted. [25] [55] Mr Essa’s answering affidavit was due on 1 March 2023, but was only delivered on 1 May 2023, the day prior to the hearing of the respondents’ application on 2 May 2023 which was ultimately postponed. As a result of the postponement, Mr Essa was ordered to pay the wasted costs on the attorney and client scale including the costs of two counsel. [56] It is this Court’s view that Mr Essa has reasonably explained his failure to deliver his answering affidavit timeously. His explanation rests on his work commitments, the bereavement occasioned by his attorney’s father passing away, and then later having undergone major eye surgery. [57] On this basis, it is my considered view that Mr Essa’s explanation for the delay is not unreasonable. Further, the delay is not inordinate. Accordingly, in consideration of all the facts, I am of the considered view that it will be in the interest of justice for this Court to condone the late filing of the applicant’s answering affidavit. Whether this interlocutory application was resolved when Mr Essa provided security for costs [58] The next issue to consider is Mr Essa’s submission that his provision of security for costs, notwithstanding that this was the alternative relief sought by the respondents, has resolved the entire interlocutory application. On this basis, he contends that the application must be dismissed. Mr Essa bolsters his argument on the fact that the respondents accepted his tender for security as determined by the Registrar and that he cooperated throughout the process that culminated in his provision of the required security. [59] Conversely, the Commission contends that Mr Essa’s dismissal argument based on the provision of security for costs is misplaced. It makes two points. First, the Commission contends that at no stage did it indicate that upon the provision of said security, it would waive its prerogative to pursue the dismissal relief. Second, it argues that the provision of security constituted clearly alternative relief, to be granted only if the court was not minded to grant the main relief; namely, the dismissal of the review application. The Commission points out that it specifically asserted in its reply to Mr Essa’s answering affidavit that his provision of security was no answer to their assertion that he was a fugitive from justice. [60] The view I take of this issue is that, in the absence of an unequivocal indication from the respondents that they would not persist with the dismissal relief upon the provision of security for costs, the interlocutory application was not thereby resolved. [61] The fact is that the dismissal relief has always been the main relief sought by the respondents. This is evident from the Notice of Motion filed when they instituted this interlocutory application. Their participation in processes that culminated in the provision of security for costs cannot, on their own, be taken to amount to acquiescence that the main relief had fallen away. No such indication is apparent from the papers, nor has Mr Essa pointed to any. [62] Put differently, the respondents are entitled to persist in seeking the main relief until this Court determines that they are not entitled to the dismissal of the review application based on the fugitive from justice argument. That determination has not yet been made. Accordingly, Mr Essa’s contention that the matter has been wholly resolved stands to be rejected. Is Mr Essa a fugitive from justice? [63] The main thrust of the respondents’ case is that the Mr Essa has no standing to institute the review application because he is a “fugitive from justice”. This argument is reliant on the clean hands doctrine. Their case is that Mr Essa, as a fugitive from justice, is disentitled from accessing our Courts to institute his review application. [64]  In this regard, the respondents contend that there are legal proceedings instituted by Eskom and the Special Investigating Unit (SIU) against Mr Essa and eleven others in this Court. The respondents mention that Eskom and the SIU make allegations of a “conspiracy and collaboration between the applicant and others to capture Eskom and loot millions of rands from it”. The amount claimed in that case, according to the respondents, is over R3 billion. [65]  The respondents further mention that, during 2023, they obtained information from the National Prosecuting Authority (NPA) indicating that Mr Essa was an accused person in criminal proceedings involving certain transactions at Transnet and Eskom.  They add that he was not cooperating with the NPA. The respondents rely on documents which they assert, to show that Mr Essa is facing charges of money laundering; and that he has been indicted and a warrant issued for his arrest. The respondents argue that Mr Essa’s refusal to disclose his residential address buttresses its view that he has placed himself beyond the reach of the South African authorities which, in their view, makes him a fugitive from justice. [66]  Mr Essa denies he is a fugitive and asserts he has not deliberately place himself beyond the jurisdiction of the court . He submits he left South Africa in 2017 for legitimate personal reasons, before any legal proceedings were initiated against him. [67]  Mr Essa has, as already mentioned, proffered his response to the “new” allegations against him. He states that Eskom instituted the civil action in which he is cited, in 2020, some three years after he left the country. In any event, he mentions that he has initiated an application to set aside a notice of bar in that matter and that the matter has since then not been prosecuted further by any of the parties involved. He mentions further that two of the defendants in the same matter had their rule 30 application dismissed by this Court in 2023, but nothing further has been done to progress the case. [68] In relation to the warrant of arrest issued against him, Mr Essa contends that it was issued several years after he left the country, and it was merely a draft bearing no signature from any official of the NPA. He further asserts that his name does not appear among the fifteen accused persons cited in the final indictment. This, he states, supports his case that he currently faces no criminal proceeding in this country, and he can therefore not be regarded as a fugitive from justice. The clean hands doctrine [69] The “clean hands doctrine” is a fundamental principle, rooted in the rule of law as entrenched in section 1(c) of the Constitution and traces its roots to the common law. The doctrine is intended to protect the Courts from the abuse of their processes. It prevents a litigant who abuses the Court’s processes from seeking judicial relief, particularly where that litigant has acted in a manner that undermines the integrity of the legal system. [70] In Maughan and Another v Zuma , [26] it was held: “ [95] Our courts have also found an abuse of process to exist where a litigant comes to court with ‘unclean hands’ and have dismissed a litigant’s claim. Such power is sparingly exercised as it prevents a litigant from having their day in court, which right is constitutionally entrenched in s 34 of the Constitution. The Constitutional Court has endorsed the approach of dismissing a claim on the grounds of abuse ‘because the litigant who would bring it is disqualified from doing so by reason of their abuse’.” [71] At its core, the doctrine implicates another constitutionally entrenched right – the right to access the Courts – as it effectively “closes the door” on a litigant who seeks to have their matter ventilated. The doctrine is to be invoked sparingly. In Villa Crop Protection (Pty) Ltd v Bayer Intellectual Property GmbH , [27] the majority in the Constitutional Court explained the doctrine within the context of abuse of Court as follows: “ [77] The litigation may be frivolous or vexatious. A litigant may seek to use the legal process for an ulterior purpose or by recourse to conduct that subverts fundamental values of the rule of law. The behaviour of the litigant may be so tainted with turpitude that the court will not come to such a litigant’s aid. The unclean hands doctrine references this latter type of abuse. It is the abusive conduct of the litigant that, in a proper case, may warrant the exercise of the court’s power to non-suit such a litigant. The court does so, even though the litigant claims a right that they would vindicate in the court proceedings. For this reason, the power is to be exercised with great caution. Put simply, the court enjoys the power to safeguard the integrity of its process. The court will only exercise this power upon a careful consideration of the prejudice that this may cause to the abusive litigant, and, in particular, the harm that may be occasioned to a litigant whose claim of right will not be decided by the court. But the court’s power to prevent the abuse of its process is not determined by the right that the abusive litigant claims.” [72] Like the par delictum rule, the doctrine not only serves to protect the Courts from abuse but also upholds public policy by discouraging illegality. [28] [73] The Supreme Court of Appeal has explained that when considering this doctrine, section 34 of the Constitution becomes relevant because – “ [25] While courts are entitled to prevent any abuse of process, it is a power that should be sparingly exercised. The starting point is the constitutional guarantee of the right of access to courts in s 34 of the Constitution. That right is of cardinal importance for the adjudication of justiciable disputes. But where the procedures of the court are being used to achieve purposes for which they are not intended that will amount to an abuse of process.” [29] In what circumstances is one a fugitive from justice [74] As already mentioned above, Mr Essa argues that for one to be labelled “a fugitive from justice”, one “ must have deliberately placed himself beyond the jurisdiction of the Court in order to evade justice ”. This he has not done, he submits. [75] Mulligan v Mulligan [30] is the locus classicus in determining if one is a fugitive from justice and formed the early basis for the doctrine of unclean hands in our law. Here, Mr Mulligan was admittedly a fugitive from justice who absconded after being granted bail following his arrest. He later sought a temporary interdict against his wife to prevent her from disposing of certain property he claimed she was in unlawful possession of, pending legal proceedings. A rule nisi was granted and on the return date, Mrs Mulligan argued that Mr Mulligan had no legal standing because of his status as a fugitive from justice. [76] The Court found that there was no clear authority in either Roman Dutch or English law on the issue. However, it did make observations: firstly, that a fugitive from justice has placed themselves outside the law and is therefore not amenable to the processes of the court, stating: “ Now, it should be noted that formerly, both in England as well as in Holland, a person had to be proclaimed or declared to be an outlaw … by judicial process, but it is submitted that there is very little difference, if any, between a person declared to be such and a fugitive from justice, as both are outside the law for contempt in wilfully avoiding the execution of the processes of the Court of the land . Similarly, the difference, if any, is small between banishment or involuntary exile on the one hand and avoiding the processes of the [l]aw through flight out of the country (voluntary exile) or hiding within the jurisdiction of the Court. In either case the person, whether he be in exile or a fugitive from justice is not amenable to the processes of the Court, and as such, in my opinion, cannot invoke the authority of the Court for the purpose of establishing his legal rights.” [31] [77]  Secondly, the Court went further to explain the importance of approaching a Court with “clean hands” finding that: “ Before a person seeks to establish his rights in a Court of law he must approach the Court with clean hands; where he himself, through his own conduct makes it impossible for the processes of the Court (whether criminal or civil) to be given effect to, he cannot ask the Court to set its machinery in motion to protect his civil rights and interests.” [32] [78] The Court went on to state that in these circumstances, were Courts to permit a fugitive from justice access, they would be providing the fugitive with an unfair advantage over ordinary litigants. To this end, it said: “ Were it not so, such a person would be in a much more advantageous position than an ordinary applicant or even a peregrinus , who is obliged to give security. He would have all the advantages and be liable to none of the disadvantages of an ordinary litigant, because, if unsuccessful in his suit, his successful opponent would be unable to attach either his property, supposing he had any, or his person, in satisfaction of his claim for costs. Moreover, it is totally inconsistent with the whole spirit of our judicial system to take cognisance of matters conducted in secrecy. It is true the applicant is entitled to present his petition through a solicitor, but, none the less, while disclosing his whereabouts to his solicitor, he withholds that information from the Court and from his opponent. As a fugitive from justice, he is not only not amenable to the ordinary criminal and civil processes of the Court, but, as far as this Court is concerned, it cannot call upon him to appear in person to give evidence on oath; it cannot order his arrest in case the facts testified to in his affidavit are proved to be false, whereas on the other hand he would be able to incept criminal proceedings for perjury proved to have been committed by his opponent. And, in this case, he would be able to invoke the authority of the Court to arrest his opponent if she were suspected of flight with the property sought to be interdicted. Such a litigant might, moreover, conceivably be the cause of the Court's being unable to arrive at any decision on the facts sought by him to be determined, if, during the hearing of the application, the Court were to find that justice could not be done unless he was called to give evidence on oath before it. Were the Court to entertain a suit at the instance of such a litigant it would be stultifying its own processes and it would, moreover, be conniving at and condoning the conduct of a person, who through his flight from justice, sets law and order in defiance.” [33] [79] The rigidity of this stance has not stood the test of time, despite being generally followed in a number of cases. [34] The strict effect of the approach was relaxed in Chetty v Law Society, Transvaal . [35] The applicant in Chetty had, in his absence, been struck from the roll after he fled South Africa at a time when various investigations into his accounts by the law society were pending. He sought an order rescinding the judgment striking him from the roll, thus enabling him to answer the substantial contentions raised against him in the law society’s original application to have him struck off. Chetty argued that while he was a fugitive from justice, there was scope for differentiation in his matter because the proceedings were instituted against him , and as such, he should be allowed to defend himself. [Emphasis added] [80] Although Chetty failed on the merits, the court concurred that the absolute bar established in the Mulligan case could be relaxed where a fugitive from justice defends himself in proceedings instituted against him . A relevant consideration was that Chetty did not initiate the proceedings. In this regard, the court held: “ It is apparent that De Waal J [in Mulligan ] was restricting his dicta to a person seeking relief because he introduces the subject by stating that, before a person seeks to establish his rights in a court of law, he must approach the court with clean hands, and he speaks of the litigant setting the machinery of the courts in motion to protect his civil rights and interests. That was apposite in the Mulligan case because it was Mulligan of whom it was alleged that he was a fugitive from justice. Again the position of the appellant in the present matter is contrasted because, far from setting the processes of the law in motion, all he is doing is attempting to defend himself against processes of the law which had been set in motion against him . [36] [Emphasis added] [81] The implication here is that the door is left slightly ajar for a litigant/fugitive to defend themselves against proceedings brought against them and not where those litigants initiate proceedings. [82] The implications of the clean hands doctrine and indeed the dicta from Mulligan must be considered through the prism of the Constitution. Central to this is the guarantee in section 34 particularly, the right of a party to have access to Courts, a right that should not be deviated from easily. The Court in Harris and Others v Rees and Others [37] adopted a pragmatic approach whilst not disavowing the principles enunciated in Mulligan , the following can be gauged: (a) The right to approach a Court for the resolution of disputes is strongly guarded and should not be easily deviated from. [38] (b) Refusing to hear a litigant is a severe measure that Courts take only in exceptional circumstances. It is justified only where the litigant’s conduct directly impedes the administration of justice and no lesser measure exists to secure compliance. [39] (c) A person’s status as a fugitive does not, on its own, bar them from approaching the Courts. Rather, the inquiry depends on the facts of the case. Courts must determine whether the litigant’s conduct has truly undermined the judicial process to such a degree that denying access is necessary. [40] (d) Having regard to all the relevant factors concerning the litigant's flight or absence from the jurisdiction of the Court, a Court retains its inherent discretion, to hear or not hear the litigant, notwithstanding their absence from the Court’s jurisdiction. [41] [83] The jurisprudence establishes that the right of access to Courts occupies a central constitutional position, and any attempt to limit it, even in the case of fugitives, requires a careful, fact-sensitive balancing of public-policy concerns against the fundamental need to keep the Courts open. Courts must act to protect their own integrity, but always with the constitutional imperative of accessibility firmly in view. Is Mr Essa a fugitive from justice [84] The respondents argue that Mr Essa lacks standing because he is a fugitive from justice who fled South Africa in 2017 to avoid the proverbial clouds gathering against him for his alleged role in State Capture. As already noted above, Mr Essa has been implicated by several investigative reports, including the Public Protector’s report in corrupt activities tied to the Gupta family involving the irregular and unlawful awarding of tenders in SOEs like Eskom, Transnet and Denel. Notably, the Public Protector’s report further recommended criminal investigations against Mr Essa. [85] The respondents rely on this report to assert that the clean hands doctrine, coupled with the constitutional imperative to combat corruption, justifies dismissal of the review application. They assert that: (a) the applicant was deeply involved in a corrupt network linked to the Gupta family, as evidenced by the Public Protector’s findings, media reports, and subsequent investigations; [42] (b)  the applicant’s departure to Dubai in 2017 coincided with increasing scrutiny into his activities, suggesting he left to evade potential criminal and civil proceedings; and (c)  the applicant’s refusal to return to South Africa places him beyond the Court’s jurisdiction, a circumstance which, in principle, should render him unable to invoke or benefit from its processes. Mr Essa’s case [86] Mr Essa disputes the respondents’ characterisation of him as a fugitive, arguing that he left South Africa in 2017 for legitimate business and personal reasons, before the Commission was established and before any legal proceedings were initiated against him. He submits further that when he left, no criminal charges were pending against him, as confirmed by the final indictment dated 1 December 2023, which excludes him. Furthermore, the civil action by Eskom and the SIU, instituted in August 2020, has seen no significant progress, indicating no immediate legal threat at the time of his departure. He submits furthermore that he co-operated with the Commission, albeit not to its satisfaction, by engaging through his attorneys and responding in writing to queries. He asserts that his provision of security for costs and the public importance of the review application demonstrate his bona fides and justify his right to be heard. Furthermore, that the respondents’ reliance on certain judicial findings (for example, Eskom v McKinsey and Knoop NO v NDPP ) [43] is impermissible, as these are not referenced in the respondents’ affidavits. [87] It is not in dispute that Mr Essa is a peregrinus . He has expressed no intention of returning to South Africa. The respondents contend that his departure coincided with increasing evidence of his involvement in State Capture, as detailed in the Public Protector’s report, and subsequent investigations. The central issue is whether the applicant is a fugitive from justice and, if so, whether the clean hands doctrine precludes him from pursuing the review application. [88] In the Court’s view, Mr Essa’s claim that he left South Africa for legitimate reasons is undermined by the timing of his departure in 2017, shortly after the release of the Public Protector’s report (14 October 2016) implicating him in corrupt activities. The report, amongst other things, recommended criminal investigations into all Gupta-related entities, including those associated with Mr Essa. [89] In Harris , [44] the litigant’s departure under “dubious circumstances” after incriminating revelations supported a finding of fugitive status, even without formal charges. Mr Essa’s departure aligns with this principle, as he left when “the proverbial clouds were gathering against him”. [90] Mr Essa’s stated intention is not to return to South Africa, and his residence in Dubai has undoubtedly placed him beyond the reach of South African legal processes, placing him squarely within the four corners of the Mulligan test. His claim of legitimate motives does not negate the effect of his absence, which prevents the Court from enforcing orders for instance, requiring his presence for testimony or enforcing cost awards without security. Indeed, as the Commission contends, both criminal proceedings and civil claims would, in practical terms, prove futile against him. [91] Furthermore, while no criminal charges were pending in 2017, the Public Protector’s recommendation for investigations created a reasonable apprehension of future legal action. The applicant’s departure pre-empted this probability, and as noted in Harris , a litigant’s absence after incriminating evidence is sufficient to infer fugitive intent. The Eskom/SIU civil action, though initiated in 2020, relates to his alleged corrupt activities at Eskom, reinforcing the Commission’s submission that he was aware of the potential legal risks. [92] The respondents have pointed out that the applicant’s exclusion from the final indictment (1 December 2023) does not erase the earlier warrant of arrest of 13 December 2021. The existence of a warrant, even if later withdrawn, supports the inference that the applicant was under investigation, and consistent with the Public Protector’s recommendations. His absence from South Africa during this period frustrated potential legal processes, aligning with the definition of a fugitive in Mulligan . [45] [93] Mr Essa’s claim of co-operation with the Commission is undermined by his refusal to respond to the Rule 3.3 Notices issued by the Commission.  His written responses which were not under oath, limited the Commission’s ability to test his evidence, suggesting a deliberate attempt to avoid scrutiny. [94] In South African Association of Personal Injury Lawyers v Heath , [46] the Constitutional Court emphasised that corruption undermines the rule of law, and partial co-operation with a body investigating corruption does not absolve a litigant of responsibility. [47] [95] Mr Essa’s objection to the Commission’s requirement for physical appearance to cross-examine witnesses is unpersuasive. The Commission’s rules, under Regulation 8(2), [48] grant the Chairperson powers to impose reasonable conditions for participation, including physical attendance to ensure procedural fairness. The applicant’s refusal to comply, prejudiced the Commission’s fact-finding mandate, supporting the Commission’s claim that he defied legal processes. [96] By failing to appear, Mr Essa prevented the Commission from fully investigating his role in State Capture, an act of non-compliance that aligns with the clean hands doctrine’s prohibition on abusing legal processes. [97] Therefore, the applicant’s limited cooperation does not negate his non-compliance with the Commission’s summons. His refusal to appear physically or to provide sworn affidavits suggest an intent to avoid accountability. [98] Furthermore, the applicant’s provision of security mitigates some prejudice to the Commission, it does not address the broader concern raised in Mulligan , [49] that a fugitive’s absence prevents the Court from enforcing other processes, such as compelling testimony or addressing perjury. Security for costs is a procedural safeguard, not a blanket exoneration of fugitive status. [50] [99] Additionally, Mr Essa’s submission that he has not withheld his whereabouts is irrelevant to the fugitive inquiry. In Mulligan , the court emphasised that a fugitive’s disclosure of their location to their attorney, but not to the Court or opponent, does not negate their evasion of legal processes. [51] Therefore, the applicant’s residence in Dubai, effectively shields him from criminal or civil enforcement, reinforcing his fugitive status. [100] Moreover, Mr Essa’s argument that the review application’s public importance justifies his right to be heard is overstated. While the application concerns significant issues of State Capture, the clean hands doctrine prioritises the integrity of judicial processes over the nature of the claim, as held in Villa Crop . [52] [101] Allowing a fugitive to benefit from the legal system while evading its reach risks “stultifying” the Court’s processes and condones defiance of the law. [53] Notably, the public interest in combating corruption, as emphasised in Glenister v President of South Africa , [54] outweighs the applicant’s interest in pursuing his claim while absent. [102] Mr Essa’s actions, of maintaining his stay beyond the reach of the Commission; his limited cooperation with the Commission; and refusal to return, further undermine his claim of his bona fides . [103] The respondents’ reliance on the Public Protector’s report, along with media reports and subsequent investigative inquiries, is beyond reproach. This is because the Public Protector’s report directly implicated the applicant in corrupt activities, including his role in Gupta-linked entities Trillian and Tegeta. The report’s recommendation for criminal investigations created a reasonable apprehension of legal consequences, which the applicant pre-empted by leaving in 2017. [104] While media reports alone cannot establish fugitive status, they corroborate the public scrutiny the applicant faced in 2016, as evidenced by articles in the Sunday Times and Mail & Guardian. The Portfolio Committee and Fundudzi reports, though post-dating his departure, confirm the ongoing investigations into his conduct , therefore making it fully known that the applicant knew of potential legal risks. [105] Whilst Mr Essa is correct to object to the reliance by the respondents in their written submissions on media reports, this cannot be extended to the respondents’ reliance on judicial pronouncements implicating him in wrongdoing, i.e. the Eskom v McKinsey [55] and Knoop NO [56] matters. In these decisions, the applicant’s involvement in malfeasance came under judicial scrutiny and was confirmed. [57] [106] These judgments on the applicant’s complicity in malfeasance at Eskom for instance, provide a powerful motivation for Courts not to easily come to the aid of anyone so implicated. These judgments found that Mr Essa was involved in State Capture. The Courts stand as the primary bulwark against malfeasance and are enjoined to safeguard the rule of law. In fulfilling this constitutional mandate, they must exercise their discretion in a manner that does not lend assistance to those implicated in malfeasance. [107] The Courts have underscored the importance of protecting their processes and condemning corruption and illegality. In Heath [58] the Constitutional Court stated: “ [4] Corruption and maladministration are inconsistent with the rule of law and the fundamental values of our Constitution. They undermine the constitutional commitment to human dignity, the achievement of equality and the advancement of human rights and freedoms. They are the antithesis of the open, accountable, democratic government required by the Constitution. If allowed to go unchecked and unpunished they will pose a serious threat to our democratic State .” [108]  Finally, Mr Essa’s departure from South Africa cannot be divorced from the political climate at the time. I am inclined to accept the Commission’s submission that Mr Essa, aware of the political developments in the country, appreciated that he would no longer have the protections afforded by the first citizen. The inference in this regard is, in my view, compelling. [109] In my view, the applicant’s reliance on his section 34 right to access the Court is subordinate to this Court’s duty to protect its processes from abuse. Mr Essa is a fugitive of justice, and allowing a person implicated in State Capture to pursue a review application will risk undermining public confidence in the Judiciary. Conclusion [110] The applicant’s submissions are unpersuasive. His departure to Dubai in 2017, following the Public Protector’s report, and his stance not to return confirms the Mulligan doctrine of unclean hands, and Harris’ definition of a fugitive from justice. The findings of the Commission place him at the centre of the State Capture project. Almost all the companies that benefitted from the State Capture enterprise featured the applicant as the central figure, which factor has received judicial confirmation. Whilst it may be so that, at present, no criminal processes are pending against him, it remains inescapable that he is outside the country and expressly indicated that he has no intention of returning. He has therefore placed himself beyond the reach of our justice system and it would be untenable for him to benefit from a system he has fled from.  All this background provides a sufficient basis to find that the applicant is indeed a fugitive from justice. [111] Considering the above, it is ineluctable that the clean hands doctrine, coupled with the constitutional imperative to combat corruption, justifies the conclusion that the interlocutory application must be upheld and that the review application be dismissed. Costs [112] The general rule in relation to costs is that the successful party is entitled to its costs, and a Court should not depart from this rule save where there be good grounds exist for doing so, such as misconduct on the part of the successful party or other exceptional circumstances. [113] It has frequently been emphasised that, in awarding costs, a Court exercises a discretion which must be exercised judicially upon a consideration of the facts of each case, and the ultimate enquiry is one of fairness to both sides. [59] In conferring this discretion, the law contemplates that the Court will take into account all relevant circumstances, including the issues raised, the conduct of the parties and any other circumstance which may have a bearing on the question of costs. The Court will then make such order as is fair and just between the parties. [114] The respondents have been successful in their interlocutory application and there is no reason why costs should not follow the result. Biowatch, [60] does not find application in this matter because the applicant is a fugitive from justice who is abusing the Court processes. Order [115] In the result, I make the following order: 1.  Condonation for the late delivery of the Applicant’s answering affidavit is granted. 2.  The Applicant’s answering and supplementary affidavits are admitted into evidence. 3.  The Respondents interlocutory application succeeds. 4.  The review application under case number 2022-009834 launched on 2 August 2022 by the Applicant against the Respondents is dismissed. 5.  The Applicant is ordered to pay the costs of this application, including the costs of two counsel where so employed on scale C. D MLAMBO (Former) JUDGE PRESIDENT GAUTENG DIVISION OF THE HIGH COURT Appearances For the Applicant:                                   L Hollander (with L Makhoba) Instructed by:                                         Swartz Weil Van der Merwe Greenberg Inc. Melrose Estate For the Respondents:                            T Ngcukaitobi SC (with T Modise) Instructed by:                                         BR Rangata Attorneys Montana Park, Pretoria Date of hearing:                                     23 July 2025 Date of judgment:                                  30 December 2025 [1] Unless the context indicates otherwise, reference to ‘the respondent/s’ is intended to refer to the first respondent, the Commission. [2] Report of The Portfolio Committee on Public Enterprises on The Inquiry into Governance, Procurement and The Financial Sustainability of Eskom, Dated 28 November 2018. [3] Final Report: Forensic Investigation into Various Allegations at Transnet and Eskom, November 2018. [4] 16 of 1963 (“the Act”). [5] Regulations in terms of Section 10 of the Act, GN R1258/72, GG 3619 of 21 July 1972. [6] [2022] (5) SA 215 (ECG) (“ Briedenhann ”). [7] Id at para 25. [8] Id at para 28. [9] See in this regard Knuttel N.O. and Others v Bhana and Others [2022] 2 All SA 201 (GJ) (“ Knuttel ”). [10] [1973] (3) SA 734 (NCD). [11] Knuttel n 9 above at para 64. [12] Briedenhann n 6 above at para 56. [13] [2025] ZAGPJHC 1008 (“ ED Food ”). [14] [2012] ZASCA 127 ; 2013 (1) SA 161 SCA. [15] Id at para 11. [16] 1963 (4) SA 656 (A). [17] Id at 660D-H. [18] 2000 (4) SA 598 (C). [19] Id at 617B-F. [20] See in this regard Transvaal Racing Club v Jockey Club of South Africa 1958 (3) SA 599 (W) at 604A-F. [21] Yunnan Engineering CC v Chater 2006 (5) SA 571 (T) at 578H–J. [22] [2017] ZASCA 88; [2017] 3 All SA 520 (SCA). [23] Id at para 26. [24] See in this regard PAF v SCF [2022] ZASCA 101 ; 2022 (6) SA 162 (SCA) at para 21. Also see United Plant Hire (Pty) Ltd v Hills 1976 (1) SA 717 (A) at 720E–G and Van Wyk v Unitas Hospital (Open Democratic Advice Centre as Amicus Curiae) [2007] ZACC 24 ; 2008 (2) SA 472 (CC) at 477A–B. [25] Aurecon South Africa (Pty) Ltd v City of Cape Town [2015] ZASCA 209; 2016 (2) SA 199 (SCA). [26] 2023 (5) SA 467 (KZP) (“ Maughan” ). [27] [2022] ZACC 42 ; 2023 (4) BCLR 461 (CC); 2024 (1) SA 331 (CC) (“ Villa Crop” ). [28] Afrisure CC and Another v Watson NO and Another [2008] ZASCA 89 ; 2009 (2) SA 127 (SCA) (“ Afrisure”) at para 39. [29] Mostert and Others v Nash and Another [2018] ZASCA 62; 2018 (5) SA 409 (SCA). [30] 1925 WLD 164 (“ Mulligan ”). [31] Id at p166-7. [32] Id at p167. [33] Id at p167-8. [34] See in this regard S v Nkosi 1963 (4) SA 87 (T). See also Maluleke v Dupont, NO and Another 1967 (1) SA 574 (RA); Herf v Germani 1978 (1) SA 440 (T); Escom v Rademeyer 1985 (2) SA 654 (T). [35] 1985 (2) SA 756 (A) (“ Chetty ”). [36] Id at 758D-F. [37] 2011 (2) SA 294 (GSJ) at 300-301 (“ Harris” ). [38] Id at 300F. [39] Id at 300E. [40] Id at 300B-301F. [41] Id at 301C-D. [42] See in this regard Eskom Holdings SOC Limited v McKinsey and Company Africa (Pty) Ltd and Others [2019] ZAGPPHC 185 at paras 16, 47, 56 (“ Eskom v McKinsey ”). [43] [2023] ZASCA 141 ; 2024 (1) SACR 121 (SCA) (“ Knoop ”). [44] Harris above n 37 at 301. [45] Mulligan above n 30 at 157. [46] [2000] ZACC 22 ; 2001 (1) SA 883 (CC); 2001 (1) BCLR 77 (CC) (“ Heath ”). [47] Id at para 4. [48] Department of Justice and Constitutional Development, GN 41436, Notice 396 of 2018. [49] Mulligan above n 30 at 167. [50] Id. [51] Mulligan above n 30 at 167. [52] Villa Crop above n 27 at para 77 . [53] Mulligan above n 30 at 168. [54] [2011] ZACC 6 ; 2011 (3) SA 347 (CC); 2011 (7) BCLR 651 (CC) at para 175. [55] Eskom v McKinsey above n 42. [56] Knoop above n 43. [57] In Eskom v McKinsey, Mr Essa’s corrupt relationship with senior Eskom officials is confirmed by the court. [58] Heath above n 46 at para 4. [59] Mashele v BMW Financial Services (Pty) Ltd 2021 (2) SA 519 (GP) at para 39. [60] Biowatch Trust v Registrar Genetic Resources and Others [2009] ZACC 14 ; 2009 (6) SA 232 (CC); 2009 (10) BCLR 1014 (CC). sino noindex make_database footer start