Health Department Director-General Dr Sandile Buthelezi was granted a court order preventing the Hawks from accessing his “personal” cellphone – after its seizure in a raid – to ensure they did not uncover communications with witnesses and the attorney who represented him in his disciplinary hearing over the 2021 Digital Vibes scandal.
According to News24, he first sought legal assistance to challenge a search warrant from the Office of the State Attorney, but this was denied because of the allegations of corruption. He turned to private law firm BDK Attorneys for help, and just weeks after the raid, they obtained an ex parte order – on the grounds of urgency without the opposing parties having an opportunity to argue their side.
The device potentially holds vital information relating to the Digital Vibes controversy, and a R500 000 bribery scheme, allegedly orchestrated by Buthelezi this year.
This application, filed on 14 March 2023, has since been abandoned, reports News24.
It is unclear if his suspension conditions prohibited him from contacting witnesses, but he was ultimately cleared of wrongdoing in the disciplinary process.
In court papers seen by News24, Buthelezi argued that the Hawks misled the court in obtaining the search-and-seizure warrant because they failed to mention the outcome of the disciplinary process.
However, months later, in May 2024, he withdrew the case – meaning the Hawks could access the device.
Search and seizure
The Hawks were granted the search-and-seizure warrant in December 2023 and executed it in February 2024.
While the warrant was based on allegations relating to Digital Vibes, a whistle-blower tip-off to the Hawks also alerted them to a second case involving Buthelezi, in which he allegedly solicited a R500 000 bribe from construction company Base Major.
The department, through the Independent Development Trust, had appointed the company to refurbish Tambo Memorial Hospital after it was damaged by a gas tanker explosion in Boksburg.
Digital links
The Digital Vibes contract for the appointment of a communications company for the NHI, and later the pandemic, saw around R150m flow out of the department, with then Health Minister Zweli Mkhize, his associates and some staff are alleged to have benefitted from these payments, while Buthelezi was accused of extending the irregular contract and allowing further payments.
He was suspended in 2021 but brought back three months later, and a disciplinary hearing found him not guilty of wrongdoing.
The search warrant was granted based on these two cases, and the Hawks were allowed to search Buthelezi and senior Health Department members’ homes, vehicles and offices.
Material to the investigation were their cellphones, computers, memory cards and SIM cards. According to the warrant, the Hawks had information that Buthelezi used his personal cellphone to commission various crimes, including corruption and fraud.
Three weeks later, Buthelezi obtained the ex-parte order. He then filed a more detailed application.
The whistle-blower in the Base Major case was later suspended for allegedly interfering in the tender process.
“The respondents (Hawks) are interdicted from accessing, perusing or manipulating … a mobile phone and/or any devices seized on 7 February 2024,” Judge Harshila Kooverjie ordered.
“They are ordered to seal the … phone and/or cellular device in evidence bags, which seals may not be broken, and the devices may not be accessed.”
Undertaking
Buthelezi, however, tried everything to conceal any traces of evidence and a day before the order was granted, instructed BDK Attorneys to write a letter of demand to the Directorate for Priority Crime Investigation (DPCI) instructing them to provide “an undertaking that the electronic equipment (two cellular phones) or any other item seized will … remain sealed”.
Buthelezi specifically instructed the Hawks to refrain from accessing communication with his attorneys, HJW Attorneys and Conveyancers, who represented him in his disciplinary hearing in the Digital Vibes case.
According to the court papers, he also asked that communication with Advocate Shomane Mathiba, the State Attorney, and with “any witnesses in the disciplinary proceedings” or “potential witnesses if criminal proceedings are to be initiated” not be accessed.
The Hawks’ response was short but firm.
“… the DPCI executed a search warrant obtained in terms of the law. Therefore, the investigation will continue on that basis until the DPCI is directed otherwise by a court of law,” said acting section head of the DPCI, Brigadier Johan du Plooy.
In the subsequent court application, launched in March, Buthelezi said the order was necessary because his phone “contained privileged information and communication” between himself and his former legal representatives in his disciplinary hearing.
He argued that he had already been tried on charges related to Digital Vibes, including gross dereliction of duty, gross negligence, financial misconduct and irregular expenditures emanating from the extension of the contract.
“It is important to note the basis for the charges against me in the disciplinary hearing as they formed the basis of the investigation by the respondents that led to an application … for a search warrant,” he said.
While it allowed Buthelezi to return to work, the outcome of the disciplinary action had no impact on the Base Major case or the Hawks’ criminal investigation into Digital Vibes.
Buthelezi said the Digital Vibes contract had been entered into before his appointment as director-general in 2021, and he took steps to investigate it and prevent more irregular expenditure. He added that had the judge who granted the warrant known this, he would not have readily granted the application.
He argued that the officer who applied for the search warrant, Warrant Officer Clinton Arrikum, misled the court and should have disclosed “the correct facts” – that Buthelezi “intended for the contracts to be reviewed”.
“As a result … it cannot be said there are reasonable grounds for believing that … my personal cellphone, was being used or has been used in the commission of an offence.
“It is in fact most likely that I, in acting decisively and in the interests of justice, managed to curb the spending on the Digital Vibes contract and … uncover the corruption earlier than would otherwise have been uncovered.”
However, in his affidavit, Arrikum alleged that Buthelezi had, in fact, allowed more payments to flow to Digital Vibes to the tune of R60m.
He said a whistle-blower informed the Hawks of “potentially unlawful and corrupt activities” by Buthelezi, about which his cellphone may hold important evidence.
Buthelezi was forced to conduct his wrangle with Hawks on his own dime after the Office of the State Attorney denied his request for state legal representation.
See more from MedicalBrief archives:
‘Whistle-blower’ seeks Hawks protection at hearing
Buthelezi also suspended – more to come?
Health DG probed after R500 000 bribery allegations
Health DG cleared in Digital Vibes contract probe and returns to work