Gauteng's premier David Makhura is liable for more than R42.8m in alleged COVID-19 procurement corruption because he “failed to prevent officials of the Gauteng provincial government (from) acting unlawfully in awarding contracts”, reports Mail & Guardian.
This was the contention from former Gauteng Health Department chief financial officer Kabelo Lehloenya, who is facing a Special Tribunal hearing today (Thursday) related to her allegedly corrupt role in the province’s awarding of PPE contracts at the start of the pandemic last year, reports the Mail & Guardian.
The SIU, which has brought the civil claim before the tribunal, seeks to recover money it claims was illegally awarded to Ledla Structural Development and Beadica 430 for the procurement of surgical masks, face masks and hand sanitisers, among other items.
The contracts were irregularly awarded, according to the SIU’s findings, given the companies’ links to Thandisizwe Diko, who was close to axed Gauteng MEC for health Bandile Masuku. Diko, who died in February, was married to suspended presidential spokesperson Khusela Diko.
In papers filed before the tribunal, Lehloenya argued that Makhura, as premier, should have foreseen there would be harm to the state in the issuance of PPE contracts; that the premier should have taken steps to prevent any financial harm to the state, and that he failed to take these steps.
“(Makhura) authorised, directed or caused or failed to prevent officials of the Gauteng provincial government from acting unlawfully in awarding contracts and/or making payments to (Ledla) and/or (Beadica); and did so with reckless disregard for the means of ascertaining the extent of his power to do so,” the documents say.
“(Makhura) is liable for the alleged malfeasance based on his role in the administration of the Gauteng provincial government or as head of the executive council of the Gauteng provincial government.”
According to the M&G report, the SIU said it was gunning for Lehloenya in her personal capacity because the former Health Department’s chief financial officer “forfeited … any and all state protection flowing from her intentional, unlawful and wrongful misconduct".
Lehloenya was the department’s CFO from February 2018 to May last year, when she resigned. The SIU said in July it had sought and obtained the freezing of Lehloenya’s pension fund after her resignation, pending the finalisation of civil action against her.
In her filed papers, Lehloenya denied that the SIU was legally entitled to recover losses to Gauteng’s Health Department from her, or that she was personally liable for those losses.
TRIBUNAL FINDINGS:
Judge Modiba found that the application by Lehloenya, as pleaded, was indeed incompetent.
Judge Modiba found also that Makhura and the Gauteng Provincial Government were already represented in the main action as the SIU is the representative plaintiff on behalf of the State in terms of Section (4) (1) (c) and 5 (5) of the Special Investigating Units and the Special Tribunals Act.
Judge Modiba found that the respondents in the third party notice application cannot be joined as such in their own action. The judge also found inconsistencies in Lehloenya's citation of the SIU in both the third party notice and the summons, and that the claim by Lehloenya that Makhura had abused his power and authority was bad in law.
Judge Modiba expressed difficulty with Lehloenya's joint, alternatively concurrent joint wrongdoers claim, as it relied less in the facts as pleaded. On vicarious liability, the Special Tribunal found that Lehloenya was not entitled to any recourse.
Judge Modiba granted the following order:
1. Premier Makhura is his official capacity and the Gauteng Provincial Government's application to strike out succeeds with costs.
2. Lehloenya's third-party notice is struck out as against Makhura and the Gauteng Provincial Government.
3. Premier Makhura in his personal and official capacity and the Gauteng Provincial Government's exception is upheld with costs.
4. Mkhululi Lukhele's special plea is upheld with costs.
5. Lehloenya's third party claims against Premier Makhura in his personal and official capacity, the Gauteng Provincial Government, Lukhele, Malotana and Pino are dismissed.
6. The above costs are inclusive of the costs of two counsel where so employed.
Mail & Guardian article – Makhura ‘liable’ for R42.8m in PPE corruption (Restricted access)
See more from MedicalBrief archives:
Judgment corrected to 'delink' Makhura from PPE scandal
Procurement scandal is the 'ugly face' of Gauteng Health — Premier
Funding-starved SIU still trying to recover missing Ledla PPE millions
Keep a particularly hot spot in hell for health tenderpreneurs