Legal battles are mounting for North West Premier Supra Mahumapelo following yet another failed bid to recover more than R30 million in government funds from lawyers for murdered billionaire Wandile Bozwana.
In a unanimous judgment on Thursday, the Constitutional Court dismissed his application for leave to appeal to it against a decision by the North West High Court in Mahikeng that allowed Bozwana to attach R30m in a Department of Public Works bank account and seize 44 vehicles following a dispute about a contractual payment.
Mahumapelo petitioned the Constitutional Court on September 29 – just three days before Bozwana died in a drive-by shooting – for leave to appeal against the high court’s decision allowing Bozwana to attach the R30m and the vehicles.
The cash was transferred into the trust account of attorneys for Bozwana’s construction company, Tsoga Developers.
In the Constitutional Court, Mahumapelo argued, as he had in the high court, that the R30m was provincial government revenue.
He said the attachment of the money prevented the department from fulfilling its constitutional obligations and interfered with the province’s monetary policies.
Bozwana argued that since the funds were being held in his attorneys’ trust account there was no chance of their disappearing before the high court handed down its ruling on Mahumapelo’s second high court application.
In this second application, the premier argued that a R47m settlement agreement reached between Bozwana and the department was unconstitutional.
Bozwana said Mahumapelo’s second application lacked merit and, because it had been filed five years after the event, it had, under the Promotion of Administrative Justice Act, become prescribed.
He also contended that the matter did not entail a constitutional issue because the attached funds were from the department’s account, and therefore were not part of the provincial revenue.
Judgment was reserved on September 29.
On Thursday, the Constitutional Court found Mahumapelo had failed to convince it that the attachment of the cash and vehicles was severely affecting his government’s operations.
Justice Mbuyiseli Madlanga – who read the judgment – said the court was unable to order the return of the cash and vehicles based on the information before it.
“Additionally, this court found that since the second application had been heard in the high court, it would not be in the interests of justice to pronounce on the issue,” Justice Madlanga said.
“This court also considered whether the interests of justice dictated that it entertain an appeal against refusal of an interim relief. It acknowledged that the refusal of the interim relief by the high court had final effect because the department no longer had access to the money.”
The Constitutional Court found Mahumapelo and his team had failed to show irreparable harm. It said “irreparable” could not be demonstrated by “bald unsubstantiated allegations saying more (information) was required’”.
The court also found that in the unlikely event that the funds were dissipated, the Attorneys Fidelity Fund provided a mechanism for reimbursement.
It said it accepted Mahumapelo had prospects of succeeding in his second application. However, even if Mahumapelo succeeded in his second application, the high court attachment order would not fall away automatically.”Unless challenged and set aside, that order has to be complied with,” Justice Madlanga said.
He said that after having considered the relevant factors, the Constitutional Court concluded it was not in the interests of justice to grant Mahumapelo leave to appeal.
Mahumapelo was ordered to pay the legal costs of Bozwana’s two counsel.