The Zondo Commission of Inquiry into State Capture abused its powers when it raided and seized – without a court order – control of safe deposit boxes belonging to a Johannesburg businessman on suspicion that he received a R50m bribe from Gupta linked companies.

This is according to the Gauteng High Court (Johannesburg), which The Sunday Independent says ruled in favour of Kubentheran Moodley on 21 August.

The commission subsequently appealed the ruling and lost last week.

In her ruling on 21 August, Judge Lebogang Modiba found that the commission’s investigators ‘exceeded their authority’ when they accessed Moodley’s rented safe deposit boxes at the state of the art security facility in Houghton Estate, known as Knox Titanium Vault Company, on 24 June.

This came after they raided and took control of Moodley’s boxes as part of their investigation into alleged state capture. The commission believes that Moodley stashed in the safe boxes ill-gotten funds from a company linked to the Gupta family.

The judge said the commission had no powers in terms of a summons issued to instruct a third party to grant it access to a safe rented by a client.

According to court papers, the commission’s investigators gained access to Moodley’s safe boxes and subsequently replaced its locks. ‘On both Moodley’s and Knox Vault’s version of what transpired when the investigators attended Knox premises, they exceeded their authority.

The State Capture Commission has no powers under summons issued in terms of Regulation 10, to instruct a third party, in this case, Knox Vault, not to communicate with a client who keeps items in a safe deposit with it and to refuse the client access to his safety deposit boxes,’ said Modiba.

‘The commission may only derive such power from a warrant for search and seizure issued by a judge in chambers; it sought the warrant after the fact,’ she said.

However, the commission later applied for a search and seizure court order against Moodley’s safe boxes, which was granted by the same judge. Despite the successful application, notes The Sunday Independent report, Modiba raised concerns about the commission’s failure to obtain a court order before searching and seizing Moodley’s safe boxes.

This court is gravely concerned by such unauthorised conduct. It is important to state here, that by granting the search and seizure warrant, this court does not condone such conduct.'

A legal expert reportedly agreed with Modiba’s ruling that the commission acted beyond its scope.

Attorney Koena Mpshe, of KM Attorneys, said Moodley had a right to seek a court order barring the commission from using any material seized as evidence against him.

These documents may not be used as evidence as a means of obtaining them was illegal. Whatever was found in those boxes before the warrant was sought, cannot be used in court. He must make an application for the illegally acquired information to be discarded by the commission and ultimately by the court,’ Mpshe is quoted as saying.

Full report in The Sunday Independent (subscription needed)