Alleged VBS looter gets court boost as judge rules he should have been allowed to give his side of the story

Findings made against the ANC’s Limpopo treasurer Danny Msiza in Terry Motau's "Great Bank Heist" report were set aside on Wednesday.

This, the Pretoria high court ruled, was because Motau had not given Msiza an opportunity to be heard.

Judge Vivian Tlhapi, however, specifically declined to say anything about whether the allegations against Msiza, as an alleged VBS looter, were true or not.

The ANC is currently at loggerheads over its national executive committee’s recent decision that Msiza should be reinstated after consultation with branches - despite an earlier recommendation by the organisation’s integrity commission that he should step aside.

The judgment will boost his political ambitions as the report was relied on by detractors to prevent his return to his ANC post.

In his report, Motau described how he had heard evidence that deposits that municipalities made to VBS attracted commission payments to individuals who solicited the deposits, and that Msiza was called the “kingpin” of the commission agent scheme. He said it was "clear that Msiza intervened on numerous occasions when his political influence was required".

These are some of the remarks that have now been set aside by the court. While Motau’s famous report contained only prima facie findings and recommendations, Tlhapi held that, where someone’s rights were implicated, it was important that they be heard.

In her judgment, Tlhapi recounted how Msiza, also a prominent businessman, told the court that, as a result of the Motau report, he had a "reasonable apprehension of the prospect of financial ruin and loss of confidence by financiers and potential business partners if the adverse remarks/findings were not expunged".

"As a result of the report and negative media coverage, he has been subjected to attack by some individuals in the veterans’ league and the youth league of the ANC in Limpopo, and to scrutiny by the integrity commission of the ANC. There were groups who picketed outside the head office of the province in Limpopo, all calling for his resignation and/or his expulsion," Tlhapi said.

In coming to her conclusion, the judge had to decide whether, even though Motau’s process was only an investigation, Msiza nonetheless had a right to be heard. What mattered, she said, was whether a person’s rights would be affected.

She quoted the Magidiwana judgment about the Marikana commission, which also made recommendations only. In that judgment it was held that some commissions, like the Marikana commission, “have the power to make far-reaching findings and recommendations, which carry the potential prejudice to rights of individuals … even at that investigative stage”.

Tlhapi said it was important to extend the principles of natural justice and the rule of law - “even to those individuals who are suspected, like in this instance, of wrongdoing by the investigator, being the individual’s right to be heard before adverse findings, remarks and conclusions are made”.

“There is no merit whatsoever in the argument the affected individual shall have the opportunity in proceedings which might be engaged in the future to clear his or her name,” added the judge.

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