Masuku takes on SIU for ‘scandalous’ claims ‘simply drawn from the air’

The Special Investigating Unit (SIU) has made “scandalous” allegations against former Gauteng health MEC Bandile Masuku based on inferences that were “simply drawn from the air”.

This is according to Masuku’s counsel, William Mokhare SC, in the Pretoria high court on Thursday.

Masuku was fired by Gauteng premier David Makhura after the SIU’s investigation into corruption in the Gauteng health department after a PPE contract was awarded to Royal Bhaca Projects.

Royal Bhaca is owned by Thandisizwe Diko, husband to presidential spokesperson Khusela Diko. The Dikos are close friends of Masuku and his wife.

The contract was later cancelled, but was then awarded to Royal Bhaca’s “proxy”, Ledla Structural Development, according to the Special Tribunal, which in December set aside the contract as unlawful.

In September and October the SIU wrote two letters to Makhura telling him what it had uncovered, and Masuku was fired.

But Masuku has challenged these findings in court, saying they were not backed up by “a shred of evidence” and had impugned his dignity and reputation.

In court on Thursday, Mokhare said the SIU findings would be “an albatross on [Masuku’s] neck for the rest of his life”.

In its letters, the SIU had said it was still investigating whether Masuku was himself involved in corruption, but that he was “actively involved (in the capacity of co-chairperson)” in the decision to make the health department the central procurement agents for the whole province.

He should have known, said the SIU, that the department had a long history of negative audits and had been struggling with its supply chain management.

“As such the decision to promote or support any proposal for the centralisation [for PPE] made no sense at all and was irrational to say the least,” the SIU said.

The SIU went on to say that, consequently, “the MEC’s support of this proposal may have been for nefarious purposes” – for example, to exploit the weak supply chain management processes “and to potentially benefit himself, his wife or their friends”.

The decision to promote or support any proposal for the centralisation for PPE made no sense at all and was irrational to say the least.

—  SIU

Mokhare told the court on Thursday that the SIU’s nefarious purpose inference was more than a stretch.

“It is actually illogical,” he said.

He said the SIU had all the legal powers to seize documents and minutes and interview all the relevant people to find out whether Masuku had in fact supported or pushed for the centralisation of procurement. But it did not interview the premier or put forward any documents to show this was the case, he said.

The SIU could not “simply draw inferences from the air”, he said.

But the SIU’s counsel, Vincent Maleka SC, pointed to parts of the court record that he said showed Masuku’s involvement in the centralisation and its implementation. He said the SIU’s inference was not a finding of fact, but it was a finding of possibility or probability based on facts and was a rational one.

Mokhare also questioned the SIU’s finding that Masuku had failed in his oversight role. Mokhare said as soon as he knew of the irregularities in the procurement process, he had taken action by calling in auditors “in a matter of two weeks”, said Mokhare.

But Maleka said a wait of 10 days was not good enough given the extent and urgency of the crisis. And given his knowledge of the state of the department when he took over – something he had undertaken to the premier to tackle when he was appointed – his conduct was in fact a “clear failure of leadership and accountability”.

Judge Roland Sutherland asked Mokhare’s junior, Mbuso Majozi, why, when Masuku had seen there was a “monstrous scandal taking place under his watch”, the MEC had not “leapt out of his chair” and put an end to it at once. Instead he had waited 10 days and then decided to have an audit.

Majozi said Masuku had acted in accordance with the law.

Mokhare also faced a number of questions from judges Sutherland, Joseph Raulinga and Thina Sinwendu on why he had challenged the SIU’s findings but not Makhura’s decision to fire him and whether the SIU’s findings could be reviewed by a court at all, given they were not binding and the MEC could have simply ignored them.

Mokhare argued it was Makhura’s decision that was not reviewable in law as MECs served at the pleasure of the premier. On the other hand, the SIU was bound under the constitution to act rationally, he said. He referred to earlier judgments where nonbinding findings were set aside, such as the findings of Terry Motau SC in his report into VBS Mutual Bank and the Seriti Commission report into the arms deal.

But Maleka said judicial review was a discretionary remedy in the hands of the court and in this case the court should not grant it. By not challenging Makhura’s decision, Masuku was playing “a political ping pong game”, said Maleka.

He said Mokhare’s argument was illogical: if Makhura’s decision could not be reviewed, how could the considerations he took into account be reviewable? he asked.

Judgment was reserved.