‘Neglectful’ Masuku loses bid to set aside SIU report
The high court in Pretoria has dismissed with costs an application from former Gauteng health MEC Bandile Masuku to set aside a damning report by the Special Investigating Unit (SIU) that placed him at the centre of dubious tenders for the procurement of Covid-19 personal protective equipment (PPE) worth more than R125m.
The SIU, which is probing more than R13bn worth of PPE contracts, found Masuku knew about his department’s irregular procurement processes and failed to execute his functions in compliance with the constitution and the Public Finance Management Act (PFMA). Gauteng premier David Makhura fired Masuku in October on the SIU’s recommendation. that he take administrative action.
President Cyril Ramaphosa’s spokesperson, Khusela Diko, has been on special leave since July 2020 after her late husband, Thandisizwe Diko, secured a R125m tender for the procurement of PPE. The Dikos and the Masukus are close friends.
The corruption allegations in the PPE tenders, awarded under emergency procurement and not subject to the open tender system, were seen as a blow to Makhura’s anticorruption focus.
In a scathing judgment on Monday, acting deputy judge president Roland Sutherland said Masuku was neglectful in his duties, “as illustrated by his failure to attend to his e-mails, despite being in a critical leadership position”.
The judgment stated that Masuku’s ignorance of the irregularities was brought into doubt by an e-mail sent to him by former Gauteng health CFO Kabelo Lehloenya on April 1 2020. It stated that “as requested” by him, she was sending him the list of suppliers. The list included Royal Bhaca and “for good measure identified Mr Diko”, Sutherland noted in the judgment. Masuku has said he read the e-mail for the first time only on August 14 2020.
“The version given that he did not read an e-mail sent to him, which he had requested, is a foundation for the opinion of his neglect of his role. Indeed, what professional person could excuse not attending to his e-mails? Prima facie, Dr Masuku’s own version is a confession of unprofessionalism and dereliction of his duties,” the judgment read in part.
Masuku’s conduct justified an adverse inference about his “lack of professionalism and lack of care in discharging his functions. His conduct shows a lack of judgment and diligence.
“Axiomatically, had he bothered to attend to his e-mails, and done so on April 1 or 2, he would have been shocked at Royal Bhaca [a company owned by Thandisizwe Diko] getting a contract then and not only in mid-May, some six weeks later. He could have stopped the debacle there and then.”
The judgment said that Masuku, as the political head of the provincial department of
R125m the value of the tender Thandisizwe Diko, the husband of Khusela Diko, secured for the procurement of PPE
health and co-chair of the command council of the province, “necessarily being aware of the perils of irregularities if appropriate controls were not in place to regulate the fraught and vulnerable process of emergency procurement … was so deaf and blind to these risks that he took no steps at all to lead and protect his department from stumbling into [a] predictable chasm”.
“In my view, the SIU was not at all irrational in forming its opinion. The SIU saw no crime having been committed by Dr Masuku. The SIU saw no basis for civil action against Dr Masuku. Indeed, it decided there was no action it could or should take. The SIU faithfully reported what it had learnt to the premier and to the president. It deemed Dr Masuku’s conduct to be wanting. To form such an opinion is plainly within its scope of functions.”
Judges Thina Siwendu and Joseph Raulinga concurred.
Masuku’s lawyer, Mojalefa Motalane, said the court found the SIU saw no crime being committed by him and that there was no basis for civil action against him. He welcomed the conclusion that he is “not accused of corruption or nepotism”. But Motalane expressed concern that the judgment “does not address the crucial matter of executive oversight by executive authorities”.
He said: “Such an oversight by the court does not help to clarify the confusion that exists about the extent and limits of executive oversight. As a result, an opportunity to define a standard and strengthen governance was terribly missed, especially in the context of the court finding that the PFMA would not have assisted the MEC in stopping any malfeasance.”
The SIU welcomed the court ruling. SIU head advocate Andy Mothibi said the judgment settled the question relating to the role of executive authorities and accounting authorities “in their responsibilities and accountability relating to the state institutions they are accountable for”.