A former North West Health Department HoD, Dr Andrew Lekalakala – arrested in 2019 and charged with fraud and corruption – has been unsuccessful in his legal efforts to have section 22 of the North West provincial legislature’s Powers, Privileges and Immunities Act declared unconstitutional.
TimesLIVE reports that the challenged section makes it an offence, punishable as perjury, for anyone who, after being warned, knowingly and corruptly gives a false answer on a material matter before the provincial legislature or its committees.
Lekalakala wanted the section declared unconstitutional on the basis that he was compelled to testify before a provincial legislature committee and that such testimony was later sought to be used against him in criminal proceedings, also saying this violated his privilege against self-incrimination and his right to a fair trial.
The charges relate to a three-year R180m deal he had signed with a Gupta-linked company Mediosa for the provision of mobile primary healthcare in several provincial districts. He was allegedly rewarded with a trip to India.
The department terminated the contract in 2018, and he was thereafter summoned to a joint session of the North West legislature.
He was fired in 2020.
In his affidavit before the North West High Court, Lekalakala said he was “interrogated” under oath in the presence of the other officials for several hours until about 5am, which was “domineering and threatening… I was … threatened … ‘that the police must be called’, and I must be locked up immediately”.
After his appearance before the committee, a complaint was lodged with the police. He was then prosecuted in the High Court for fraud, corruption and contraventions of the Public Finance Management Act.
Lekalakala said his criminal trial on these charges was currently part heard.
The state led the evidence of Dr Kgosi Motlabane, who was deputy DG of the department.
Lekalakala said that the state tried to lead evidence of what Motlabane had testified to in his evidence before the provincial legislature.
Lekalakala’s legal representative objected to this, leading to the constitutional challenge. The intended evidence was disputed on the basis that information tendered by witnesses and answers to questions by members of the provincial legislature were privileged, and could not be used as evidence in any criminal prosecution.
In its judgment on 19 December, the court said the objective of section 22 of the Immunities Act was to preserve the integrity, effectiveness and credibility of the legislative oversight mechanism, and that it compelled a witness to answer truthfully.
“Importantly, it does not compel evidence, nor punish silence. Its purpose is limited to penalising deliberate falsehoods…. care should be taken not to read into this section unrelated content, such as the right against self-incrimination, as the applicant would wish.”
The court said when considering a constitutional issue, a court should avoid deciding those issues where a matter could be disposed of on any other basis – that constitutional interpretation should occur only when necessary for the resolution of the case.
See more from MedicalBrief archives:
Lawyers for ex-Health boss oppose evidence in Gupta-linked case
North West Health boss fired over alleged Gupta fraud links
North West Health Department HoD on fraud charges still in post
Full salary for North West health official despite 11-month absence