Cornastone asks Concourt to allow Post Office appeal

Allegations that the Supreme Court of Appeal (SCA) was biased in overturning a R60 million damages award against the SA Post Office over a corrupt tender were the “most scurrilous allegations” that could be made against a judge, the Constitutional Court (Concourt) heard yesterday.

Brian de Lacy and Barry Beadon, members of Cornastone e-Commerce Services, a bidder for a tender for a pension payment system in North West, were applying for direct access to the Concourt to get the SCA judgment set aside or to have the appeal resubmitted.

The tender was awarded to the Kumo consortium. Its prime contractor was Labat, the listed technology firm headed by former SA Rugby chief executive Brian van Rooyen.

The tender award and process was subsequently called off.

The Concourt yesterday heard that a letter was sent withdrawing allegations that there was a deliberate distortion of the facts by the SCA to come to a conclusion that was favourable to the Post Office.

However, the applicants maintained that the 114 alleged factual errors in the judgment were so inconsistent with the court record that it created a reasonable perception of bias.

Mark Nowitz, counsel for De Lacy and Beadon, was grilled by the Concourt judges about when they became aware of the bias and why it had not been raised in a previous application to the Concourt.

The previous application, which was dismissed, was based on an aspect of the element of intention in claims for damages linked to state tenders.

Nowitz said the perception of bias was present because of the 114 factual inconsistencies between the judgment and the court record and the reference by Judge Robert Nugent to disgruntled tenderers too frequently approaching the SCA.

He said the perception was that the SCA wanted “to put an end to these things”.

Nowitz said the applicants had approached the Judicial Service Commission (JSC) with a complaint regarding the factual findings made by the SCA but only after this application was launched did the applicants got a letter from the JSC informing them their complaint should go to the Concourt.

Judge Dikgang Moseneke said the SCA had five judges and even if one of the judges was biased the four other judges must apply their minds and fulfil their judicial duty.

The allegation implied the four other judges conspired and did not apply their minds.

Nowitz said Judge Nugent wrote the judgment and the applicants did not “in any shape or form attach blame to the door” of the other judges.

Nic Maritz, counsel for the Post Office, said the perception of bias was already raised in the hearing of the SCA when it was stated that the applicants did not have to prove corruption but an intention to prejudice and defraud Cornastone.

Maritz said the applicants believed the onus of proof had shifted to them and they had to prove what had already been proved. The allegations against the SCA judges were “scurrilous and unfounded”.

Maritz said there might have been irregularities and an attempt to favour Kumo but that did not point to fraudulent intent. If the tender board had acted fraudulently, it would have sought to defend its position but cancelled the entire process when it was advised of irregularities, he said.

Judgment was reserved. - Roy Cokayne