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[2021] ZAGPPHC 273
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Masuku v Special Investigations Unit and Others (P55372/2020) [2021] ZAGPPHC 273 (12 April 2021)
REPUBLIC OF SOUTH
AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
(1)
REPORTABLE:
YES
(2)
OF
INTEREST TO OTHER JUDGES: YES
(3)
REVISED.
DATE
12 April 2021
Case
No: P55372/2020
IN
THE MATTER BETWEEN:
BANDILE EDGAR
WALLACE MASUKU
Applicant
and
SPECIAL
INVESTIGATING UNIT
First
Respondent
PREMIER,
GAUTENG PROVINCE
Second
Respondent
PRESIDENT
OF THE REPUBLIC OF
SOUTH
AFRICA
Third
Respondent
Headnote
Review
of the special investigating Unit (SIU) – the SIU investigated
allegations of maladministration and of corruption in
the Gauteng
Department of Health (GDoH)– it initiated action against
several persons and entities in the special Tribunal
on the grounds
of gross irregularities and prima facie corruption - However,
in respect of the applicant, the political head
of the GDoH, it
merely submitted a report to the provincial premier – the
report criticised the applicant as being in dereliction
of his role
as political head of the GDoH and expressed the opinion that action
be taken by the premier against him
Whether
or not a report of the SIU is reviewable under the principle of
legality for want of rationality – Held that a report
was an
exercise of a public power and had an impact on persons implicated in
the investigation which could be deleterious to their
interests and
of importance to the general public inasmuch as they had an interest
in the conduct of elected officials of the state–
accordingly,
held that the report was a reviewable act under the principle of
legality
As
to the status and role of the SIU and its reports – Held that
the very purpose of the SIU is to investigate and reach conclusions
which may found accusations of wrongdoing or impropriety –this
role is purely investigative and not determinative - the enabling
statute requires a report to be furnished to the president, and in
the case of an investigation into the affairs of a province,
to the
premier, thus the SIU acted rationally in relation to the purpose for
which the public power was vested in it.
On
the facts, held that the report was not irrational – the
foundation of the criticism was rationally connected to the opinion
in the report that there was a case to be met on the allegation of
dereliction of duties:
First,
that the applicant’s own version of his conduct demonstrated a
lack of professionalism in that he neglected to
monitor his emails,
and especially an email that contained critical information which he
had solicited, but never read , which
had he done so he would have
been apprised of the prima facie inappropriate award of lucrative
contracts to an entity whose director
had a close personal
relationship with him, which awards had been made in violation of
several governance regulations and supply
chain guidelines ;
Second,
that the applicant, in adopting the view that he should remain
utterly uninvolved in the governance of the emergency procurement
undertaken in respect of personal protective equipment by his
department, regardless of the crisis precipitated by the covid
pandemic
and regardless of the risk of improprieties taking place
under such fraught circumstances, displayed a serious lack of
judgment
about his role.
Held:
the review application be dismissed with costs, including costs of
two counsel.
THE
ORDER
The
application is dismissed with costs, including the costs of two
counsel.
JUDGMENT
This
judgment has been handed down by being uploaded to Caselines and the
date of delivery and publication is deemed to be date
of the upload.
The
Court (Sutherland ADJP, Raulinga et Siwendu JJ)
INTRODUCTION
[1]
This matter is about an application to review a report of the first
respondent, the
Special Investigating Unit (SIU). It gave a report to
the second respondent, the Premier of Gauteng, in the form of two
letters
dated 17 September and 1 October 2020.
[1]
The report concerned investigations by the SIU into the alleged
commission of irregularities and of corruption in the Gauteng
Department of Health (GDoH). These allegations related to the
procurement of personal protective equipment (PPE) with which to
supply the entire provincial government to be used address the covid
pandemic. The report stated that, as at the time of submission,
the
investigations were ongoing into these issues.
[2]
However, the report, which was de facto a first report, addressed in
the interim, the conduct of the applicant, Dr Bandile Masuku
(Dr
Masuku). Dr Masuku was, at the relevant time, the Member of the
Executive Council (MEC) for Health and thus the political head
of the
GDoH. The report was critical of Dr Masuku, expressing the view that
the evidence gathered in the investigation, thus far,
pointed towards
him have been in dereliction of his duties as MEC.
[2]
The SIU is a statutory entity established by the Special
Investigating Units and Special
Tribunals Act 74 of 1996 (The SIU
Act). The President, by proclamation, mandates the SIU, ad hoc, to
investigate specific issues
in state institutions.
[3]
It is required to report to the President. Whenever a SIU operates
within a provincial sphere of government, the Premier of that
province must be involved in the engagement of the SIU, and a report
is due to the Premier too. In that context, the SIU report
to the
Premier recommended ‘administrative action’ against Dr
Masuku, on the grounds that he was derelict in his official
duties as
MEC. The SIU did not form the opinion that Dr Masuku was, either
civilly liable to the State or criminally culpable,
unlike other
persons against whom the SIU took action in the Special Tribunal.
[4]
[3]
The premier, thereafter on 9 October 2020, removed Dr Masuku from the
office of MEC.
[5]
It is accepted
by the parties in this matter that the Premier was entitled to
appoint and remove MECs as he saw fit, pursuant to
a prerogative he
enjoyed. It is unnecessary for that perspective to be pronounced upon
in this judgment, and importantly, nothing
in this judgment should be
construed as addressing the propriety of the decision by the Premier,
albeit reference thereto is sometimes
necessary. Understandably, Dr
Masuku was aggrieved. As a result, he launched this review
application against the SIU.
[4]
The review application was not brought under the rubric of the
Promotion of Administrative
Justice Act 3 of 2000 (PAJA). It
was common cause that the report had no legal or external effect as
required by the definition
of “administrative action” in
PAJA.
[6]
The matter has been
approached by the court on that premise.
[5]
Instead, Dr Masuku relied on the principle of legality as the basis
for his review
application. The test for such a review is whether the
impugned decision is rational, a factual enquiry.
[7]
[6]
In
Minister of Defence v Motau
2014 (5) SA 69
(CC) at [69] it
was reiterated that as regards the test for rationality:
“
For
an exercise of public power to meet this standard, it must be
rationally related to the purpose for which the power was given.
It is also well established that the test for rationality is
objective and is distinct from that of reasonableness.”
[7]
Furthermore, in
DPP v Freedom under Law
2014 (4) SA 298
(SCA).
Brand JA held as regards the test of rationality under the principle
of legality:
‘
[28]
The legality principle has by now become well established in our law
as an alternative pathway to judicial review where PAJA
finds
no application. Its underlying constitutional foundation
appears, for example, from the following dictum by Ngcobo J
in
Affordable
Medicines Trust and Others v Minister of Health and Others
2006
(3) SA 247
(CC)
(2005
(6) BCLR 529
;
[2005] ZACC 3)
para 49:
'The
exercise of public power must therefore comply with the
Constitution, which is the supreme law, and the doctrine of
legality,
which is part of that law. The doctrine of legality, which
is an incident of the rule of law, is one of the constitutional
controls
through which the exercise of public power is regulated by
the Constitution.'
[29]
As
demonstrated by the numerous cases since decided on the basis of
the legality principle, the principle acts as a safety
net to give
the court some degree of control over action that does not qualify as
administrative under PAJA, but nonetheless involves
the exercise of
public power
.
Currently
it provides a more limited basis of review than PAJA.
Why I say 'currently' is because it is accepted that '(l)egality is
an evolving concept in our jurisprudence, whose full creative
potential will be developed in a context-driven and incremental
manner' (see
Minister
of Health and Another NO v New Clicks South Africa (Pty) Ltd and
Others (Treatment Action Campaign and Another as Amici
Curiae)
2006
(2) SA 311 (CC)
(2006
(1) BCLR 1
;
[2005] ZACC 14)
para 614; Cora Hoexter op cit at 124 and
the cases there cited).
But
for present purposes it can be accepted with confidence that it
includes review on grounds of irrationality and on the
basis that the
decision-maker did not act in accordance with the empowering statute
(see
Democratic
Alliance and Others v Acting National Director of Public Prosecutions
and Others
2012
(3) SA 486 (SCA)
paras
28 – 30).” (Emphasis added)
[8]
This review application presupposes that the report of the SIU to the
Premier is indeed
reviewable. It can only be reviewable if it
constitutes an exercise of public power. The SIU put in dispute that
its report is
reviewable, laying emphasis on the fact that there was
no finality to it. Moreover, it was stressed that the report does not
impose
a sanction on Dr Masuku. On this premise, it was argued that
the report, itself, could not be reviewable, and by implication
disputed
that it can be construed as an example of an exercise of
public power.
[8]
[9]
The upshot of the stances adopted by the parties means that there are
two core questions
for decision before this court:
9.1
Is
the report of the SIU to the Premier reviewable?
9.2
If so,
is the criticism of Dr Masuku and a recommendation to take
“administrative action” against him in the report
of the
SIU to the Premier, rationally connected with purpose for which the
SIU was empowered to enquire into the various allegation
of
irregularities, including corruption, in the GDoH?
THE
STATUS AND FUNCTION OF THE SIU
[10]
The preamble to the SIU Act states that the purpose of the statute
is:
“
To
provide for the establishment of Special Investigating Units for the
purpose of investigating serious malpractices or maladministration
in
connection with the administration of State institutions, State
assets and public money as well as any conduct which may seriously
harm the interests of the public and of instituting and conducting
civil proceedings in any court of law or a Special Tribunal
in its
own name or on behalf of State institutions…
”
[11]
Section 2 of the SIU Act empowers the President to establish a SIU
‘…whenever he
…deems it necessary’ to
address a range of issues listed in section 2(2).
“
T
he
President may exercise the powers under subsection (1) on the grounds
of any alleged-
(a)
serious
maladministration in connection with the affairs of any State
institution;
(b)
improper
or unlawful conduct by employees of any State institution;
(c) unlawful appropriation
or expenditure of public money or property;
(d)
unlawful,
irregular or unapproved acquisitive act, transaction, measure or
practice having a bearing upon State property;
(e)
intentional
or negligent loss of public money or damage to public property;
(f)
offence
referred to in Part 1 to 4, or section 17, 20 or 21 (in so far as it
relates to the aforementioned offences) of Chapter
2 of the
Prevention and Combating of Corrupt Activities Act, 2004
, and which
offences was[sic] committed in connection with the affairs of any
State institution; or
(g)
unlawful
or improper conduct by any person which has caused or may cause
serious harm to the interests of the public or any
category thereof.”
[12]
Upon being satisfied that the establishment of an SIU is appropriate,
the President thereupon
issues a proclamation which: “….must
set out the terms of reference of the [SIU] and such particulars
regarding the
establishment of the [SIU]…as the President may
deem necessary”. Accordingly, the SIU is given a clear mandate
in
the terms of reference which axiomatically informs it activities.
[13]
Importantly, for this matter, whenever the issue which justified the
establishment of the SIU
‘…falls within the exclusive
competence of a province, the President shall, in terms of section 2
(a) of the SIU Act,
exercise such powers only after consultation with
or at the request of the premier of the province concerned.’
Axiomatically,
in such examples, the Premier no less than the
President must receive a report.
[9]
[14]
The terms of reference by the President to the SIU in this matter,
identified the subject matter
as the procurement of goods in relation
to the state of disaster and any acts of improper or unlawful conduct
by any persons. In
paragraph 2 it stated:
“
Any
improper or unlawful conduct by the officials or employees of the
state institutions …in relation to the allegations
[of
irregular or unlawful conduct] including the causes of such improper
or unlawful conduct ….”
[15]
The critical functions of a SIU are the subject matter of section 4:
“
Functions
of Special Investigating Unit
(1)
The
functions of a Special Investigating Unit are, within the framework
of its terms of reference as set out in the proclamation
referred to
in section 2 (1)-
(a)
to
investigate all allegations regarding the matter concerned;
(b)
to
collect evidence regarding acts or omissions which are relevant to
its investigation;
(c)
to
institute and conduct civil proceedings in a Special Tribunal or any
court of law for-
(i) any
relief to which the State institution concerned is entitled,
including the recovery of any damages or losses
and the prevention of
potential damages or losses which may be suffered by such a State
institution;
(ii) any relief
relevant to any investigation; or
(iii) any relief
relevant to the interests of a Special Investigating Unit;
(d)
to
refer evidence regarding or which points to the commission of an
offence to the relevant prosecuting authority;
(e)
to
perform such functions which are not in conflict with the provisions
of this Act, as the President may, from time to time, request;
(f)
from
time to time as directed by the President to report on the progress
made in the investigation and matters brought before the
Special
Tribunal concerned or any court of law;
(g)
upon
the conclusion of the investigation, to submit a final report to the
President; and
(h)
to
at least twice a year submit a report to Parliament on the
investigations by and the activities, composition and expenditure
of
such Unit.”
[16]
From these provisions several important characteristics of the SIU
and its work are made clear.
The function of the SIU is to
investigate
matters, not to make a
determination
about matters. This is a significant point of distinction. In this
regard, the
function
of the SIU is materially distinct from other statutory entities such
as the Public Protector
[10]
and of Commissions of Enquiry
[11]
.
This distinction has, for example, been expressed by the
Competition Tribunal in relation to the work of the Competition
Commission, it being another example of a statutory investigative
entity, in
Norvartis
SA (Pty) Ltd v Main Street 2 (Pty) Ltd
[2001-2002]
CPLR 470
(CT) at [55], relying on a decision by the SCA in
Chairman,
Board on Tariffs and Trade v Brenco Inc & Others
2001
(10) JTLR 324
(SCA);
[2001] ZASCA 67
, a decision dealing with import
customs investigations.
[12]
These decisions drew on English Authority.
[13]
The Public Protector can make certain recommendations that bind the
State entity or state official to take specified action.
[14]
A
Commission of Enquiry, although not making recommendations that are
binding, nevertheless
adjudicates
on evidence presented to it and makes a
determination
about the facts.
[15]
The SIU’s
reports and recommendations bind no one, and like the Competition
commission, which must lay its views before the
Competition Tribunal,
the SIU must lay its views before the Special Tribunal or a Court.
[17]
Accordingly, because the SIU is a statutory entity, it operates
strictly within the provisions of the SIU Act.
[16]
It exercises statutory powers in order to investigate and report.
When the SIU believes it has discovered a crime it must refer
the
evidence ‘which points to the commission of an offence to the
relevant prosecuting authority’. If it believes it
has
discovered evidence which supports a civil claim it may institute a
claim in the special Tribunal or in a Court of Law. In
short, the
SIU’s opinion about any issue is not determinative nor final in
any way
[18]
These distinctions are not relevant to whether the decisions of the
entities are reviewable or
not. Both the Public Protector’s
decisions and a Commission of Enquiry’s decisions are
reviewable. The character of
the decision does however define what
type of decision a review audits for rationality. An investigator, by
definition, has no
final say over a matter investigated.
IS
A SIU REPORT REVIEWABLE?
[19]
Is the report of the SIU, in the light of these considerations, an
exercise of public power which
ipso facto would render it susceptible
to review? This question provokes the anterior question – what
exactly is a public
power? The answer to this question is a slippery
eel. Professor Cora Hoexter has addressed the problem of
conceptualising the idea
of a public power.
[17]
She makes the unassailable point, on abundant authority, that it is
the
function
not the functionary that matters. She remarks that the diagnosis by
the courts of what is a public power: “...takes place
on a
case-by-case basis”, rather than in terms of a coherent
principled development. Among the key factors enumerated by
her that
have been taken into account by the courts which are especially
pertinent to this case, are (1) the source of the power
exercised and
(2) the impact of the exercise of the power on the public.
[20]
This perspective resonates with the remarks of Brand JA in
DPP v
Freedom under Law,
cited above, about the indeterminate scope of
the application of the principle of legality and the prospects of
future expansive
development. In my view, it can be reasoned from
this premise that the motive force of policy considerations is the
chief determinant
of what acts or decisions are appropriate to
subject to review under the principle of legality.
[21]
The “source” of the SIU’s power to
investigate
and to
report
is, plainly, statutory. What of its
“impact on the public”? True enough, the report of the
SIU imposed no sanction.
Yet, it cannot cogently be said that the
report had no influence or impact on persons caught up in the
investigations or that a
report could never be causally connected
with a harm suffered by a person affected by the report.
[22]
Dr Masuku is undoubtedly adversely affected. It is accepted by both
parties that the Premier
based his decision to remove Dr Masuku as
MEC on the contents of the report. Moreover, apart from the ignominy
of the removal,
Dr Masuku’s reputation as a public officer
bearer has been dented. Whether, in the long run, his political
career will suffer
remains to be seen, but in the short run, his
political career clearly has been truncated.
[23]
Were a distinction between an impact on the “public” and
an impact on an implicated
person be thought to be legitimate, which
I doubt, it would seem, in my view, that the “public”
have a legitimate interest
in the unmasking of incompetent public
servants. Therefore, the public interest would be served by the
agency that performs the
unmasking doing so rationally and not
capriciously. In this regard the remarks of Heher JA in
SA
Predator Breeders Association & others v Minister of
Environmental Affairs and Tourism
[2011] 2 All SA 529
(SCA) at
[28] are apposite:
“…
Rationality,
as a necessary element of lawful conduct by a functionary, serves two
purposes: to avoid capricious or arbitrary action
by ensuring that
there is a rational relationship between the scheme which is adopted
and the achievement of a legitimate government
purpose or that a
decision is rationally related to the purpose for which the power was
given, and to ensure the action of
the functionary bears a rational
connection to the facts and information available to him and on which
he purports to base such
action. As noted in the
Pharmaceutical
case
(
supra
)
at paragraph 90 “a decision that is objectively irrational is
likely to be made only rarely but, if this does occur a court
has the
power to intervene and set aside the irrational decision”.
[24]
Can it therefore be said that a statutory body, responsible for
investigating and presenting
a report that can be damagingly critical
of an individual, should not be accountable for such action, and not
be susceptible to
an audit for rationality in respect of the
criticisms it advanced, merely because the outcome of the
investigation is not final
and is intended to be of use only for
another entity or person, who is an actual decision-maker, and whose
ultimate decision, in
turn, is one freely taken, regardless of the
contents of the report ?
[18]
In my view, the public interest is not well served by such
unaccountablity.
[25]
In
SIU v Nadasen
2002 (1) SA 605
(SCA) at [5], Harms JA
observed that an SIU is ‘similar to a commission of enquiry’.
That observation was, however,
not intended to mean they were clones,
nor that there were not material differences. The controversy in that
case was whether the
SIU had jurisdiction to investigate the affairs
of the Durban Municipality. Because the President had not consulted
with the provincial
premier, a jurisdictional requirement, the Court
held the SIU to have acted ultra vires in the matter. As part of the
considerations
relevant to taking a strict view of the jurisdictional
competence of a SIU, it was stated:
“
[5]
A unit such as the appellant [the SIU] is similar to a commission of
inquiry. It is as well to be reminded, in the words of
Corbett JA
in
S
v Naudé
1975
(1) SA 681
(A)
at
704B - E, of
the invasive nature of commissions, how they can easily make
important inroads upon basic rights of individuals and that it is
important that an exercise of powers by a non-judicial tribunal
should be strictly in accordance with the statutory or other
authority
whereby they are created.
The
introductory part of s 4(1) of the Act emphasises the point. This
accords with the approach of the Constitutional Court (
South
African Association of Personal Injury Lawyers v Heath and Others
(supra
at
para [52])). Appellant's reliance upon a 'liberal' construction
(meaning in the context of the argument 'executive-minded')
is
therefore misplaced. A Tribunal under the Act, like a commission, has
to stay within the boundaries set by the Act and its
founding
proclamation; it has no inherent jurisdiction and, since it
trespasses on the field of the ordinary courts of the land,
its
jurisdiction should be interpreted strictly (cf
Fey
NO and Whiteford NO v Serfontein and Another
1993
(2) SA 605 (A)
at
613F - J).”
(underlining
supplied)
[26]
These remarks alluded to the effect of a commission of enquiry’s
determinative function,
which can be contrasted with the purely
investigative role of the SIU, a dimension already dealt with above.
But the true significance
of the remark is the effect that the work
of the entity can have; ie its invasive character and the
implications for the basic
rights of persons caught up in the
investigations. If investigative conduct has an invasive
effect, then the caution about
keeping such an entity within bounds
is apt.
[27]
The ‘absence of finality’ dimension was recently
addressed directly in
Rhino Oil and Gas Exploration South Africa
(Pty) Ltd v Normandien Farms (Pty) Ltd
2019 (6) SA 400
(SCA). In
that matter, R was intent on acquiring mining licence. Prior to being
able to do so, several steps had to be taken, among
which was that a
report on the environmental impact had to be submitted to the
Minister. It was common cause that the process leading
up to the
submission of the report was flawed. The SCA, on the facts, held that
the challenge was premature because the effect
of the acts that
occurred, including the receipt of the impugned report, did not cause
any prejudice to N and therefore the dispute
was not ripe to be
reviewed. Plasket JA had this to say on the applicable law:
“
[30]
In terms of the common law, an applicant for judicial review, even if
he or she establishes an irregularity, is not entitled
to have the
offending action set aside on review unless he or she is prejudiced
by it. That was made clear by this court many years
ago in
Jockey
Club of South Africa and Others v Feldman
,
and has been followed in numerous cases since. In
Rajah
& Rajah (Pty) Ltd and Others v Ventersdorp Municipality and
Others
Holmes JA explained the basis of the rule when he said:
'Now I
think it is clear that the Court will not interfere on review with
the decision of a
quasi
-judicial
tribunal where there has been an irregularity, if satisfied that
the complaining party has suffered no prejudice.
. . . In principle
it seems to me that the Court should likewise not interfere in the
present case at the instance of the Council,
whatever the precise
nature of the present proceedings, since it is clear that there has
been no prejudice to the public interest
which the Council
represents. The underlying principle is that the Court is
disinterested in academic situations.'
[31] That
Normandien suffered no prejudice as a result of the alleged
misdirections it complains of is admitted by it. In answer
to a
statement in Rhino's supplementary answering affidavit that Rhino had
no intention of entering onto Normandien's land and,
if it wished to,
it would require further authorisation, Normandien said:
'
(a)
The
Second Respondent states that it has no intention to enter upon or
physically interfere with the Applicant's farms at
this stage.
(b)
It
is apparent that the main intention of the Second Respondent is to
ultimately do so as there is no undertaking that it will never
do so,
even if the non-invasive procedure provides results.
(c)
It
is therefore with respect not the present situation which has
instilled a fear in the Applicant,
but
what the end result would be
, which the
Second Respondent is clearly intent upon doing.' [Emphasis added.]
[32] The
situation is clear: Normandien's rights have not been adversely
affected by the process so far, and it can point to no
prejudice on
its part at this stage.
[33] As
a general rule, a challenge to the validity of an exercise of public
power that is not final in effect is premature.
An application to
review the action will not be ripe and cannot succeed on that
account. Hoexter explains the concept thus:
'The idea
behind the requirement of ripeness is that a complainant should
not go to court before the offending action or decision
is final, or
at least ripe for adjudication. It is the opposite of the doctrine of
mootness, which prevents a court from deciding
an issue when it is
too late. The doctrine of ripeness holds that there is no point in
wasting the courts' time with half-formed
decisions whose shape may
yet change, or indeed decisions that have not yet been made.'
There is
a close connection between prejudice and ripeness. Baxter states that
'the appropriate criterion by which the ripeness
of the action in
question is to be measured is whether prejudice has already resulted
or is inevitable, irrespective of whether
the action is complete or
not'.
[34]
Normandien
has approached the court before any decision, according to it, has
even been taken, and before it had suffered any prejudice
on account
of the actions complained of. It launched a pre-emptive strike
against Rhino
. It may perhaps have been best advised to 'husband
its powder' in anticipation of the battle that may (or may not)
lie ahead.”
(Emphasis added)
[28]
The circumstances that led to the result in
Rhino
can be
contrasted with the circumstances in this case. There can be no doubt
that the SIU report has had prejudicial consequences
for Dr Masuku,
as evidenced by his loss of office, unlike the position in which N
found itself in
Rhino
. But the example of Dr Masuku goes
beyond his personal mishap; it is a significant illustration that
should a report of a statutory
body, (even when no decision-making
authority can be compelled to adopt it,) express criticism of a
person implicated in its realm
of activity, material harm can flow
therefrom. It is therefore wholly appropriate, as a matter of
principle and of policy, that
accountability for its actions should
be recognised and, thus, the ripeness of the report to be reviewed
under the expanding scope
of the principle of legality is
demonstrated.
[29]
In the circumstances experienced by Dr Masuku, whose grievance is a
shattered reputation, perhaps
it could sensibly be asked whether he
should be left to exercise a private law remedy for defamation rather
than be entitled to
utilise a public law remedy in the form of a
review. Whether the SIU could plausibly be protected from a
defamation action by pleading
that it is the essence of its very
function to make accusations is not a question that this judgment
needs to answer. An example
of a defamation claim against the SIU for
charging
a person before the Special Tribunal is
Stafford v
SIU
1999 (2) SA 130
(ECD). Mrs Strafford was brought before the
special tribunal by an SIU known as the Heath Commission. She was
aggrieved at the
decision to charge her. She sued for defamation.
Notably, she did not seek a review. The case was decided on other
grounds irrelevant
to the present debate. However, that decision
assumed that the action for defamation against a SIU was a valid
cause of action.
This case is an illustration that a decision by the
SIU to
charge
a person is probably actionable. Whether or not
an
accusation
by the SIU is actionable was not addressed. In
Dr Masuku’s case, the SIU took no steps against him, yet
accused him of dereliction
of duty.
[30]
In my view, policy considerations are pertinent to answer the
question about what form of remedy
is appropriate. The criticism of
Dr Masuku is about his role as an MEC; ie, a role performed by him in
public life in the governing
of the province. This factor decisively
tips any balance in the direction of a public law remedy.
Accordingly, on that premise
the conduct of the SIU should be held
accountable by way of review. The report of the SIU, albeit
“non-final”, is an
exercise of public power for which it
can be held accountable on the test for rationality.
IS
THE REPORT RATIONAL?
What
did the investigation unearth? The role of the officials
[31]
The existence of a company called Royal Bhaca Projects (Pty) Ltd
(Royal Bhaca) became headline
news on 19 July 2020 when media reports
published the fact that the company had been awarded lucrative
contacts by the GDoH. The
director of Royal Bhaca was Mr Thandisizwe
Diko. Mr Diko’s wife was the then spokesperson for the
President. Moreover, Dr
Masuku and his wife were intimate friends of
Mr and Mrs Diko. The revelation of these convergences fed intense
curiosity, having
regard to scale of corruption that chronically
plagues public procurement. There were those who suggested that the
whiff of corruption
could be sensed here too.
[32]
The perpetration of grotesque irregularities in the procurement of
PPE by Royal Bhaca and by
another company associated with Mr Diko,
Ledla Structural Developments (Pty) Ltd (Ledla) is common cause. The
SIU investigation
addressed these two companies’ dealings with
GDoH officials. Two officials in particular were at the centre
of the
investigation. One was Ms Kabelo Lehloenya, the chief Finance
officer, who resigned on 1 June 2020. The other was Ms Thandiwe Pino,
the head of Supply Chain Management, who had taken up the job only
few days before the state of disaster was declared. The SIU
investigation was triggered, not by any media revelation, but the
momentum caused by protests initiated by Ms Pino.
[33]
On 26 March 2020, the state of disaster was declared in respect of
the covid pandemic. Four days
later, Mr Diko on behalf of Royal
Bhaca, ostensibly unsolicited, quoted to supply the GDoH with
equipment for R47m. Its appointment
as a service provider to provide
PPE and the letter of commitment for the specific transaction were
issued the same day. Ms Pino
signed the letter. On 1 April Royal
Bhaca quoted again to supply goods for R78.5m. Again, the letter of
commitment was instantly
signed by Ms Pino.
[34]
Ms Pino had no authority to sign letters of commitment for such
amounts. Royal Bhaca had no prior
involvement whatsoever in the
supply of PPE. Moreover, at that time, it was not registered on
the Central Supplier Database
(CSD) to supply PPE, a precondition to
contracting with the state. It was not tax compliant. It had
not succeeded in having
its bank details verified. It was also not a
VAT registered vendor. Its registered address was Mr Diko’s
residence. It transpired
that its sole functional operating modality
was getting a contract to supply, then armed with a letter of
commitment, thereupon
buying the goods from a manufacturer or
distributor, then supplying the material at a mark-up and getting
paid; in short, a conduit
which added no value.
[35]
Moreover, it transpired that several treasury notes –
instructions governing the Covid
PPE procurement - were ignored. The
prices quoted exceeded the limits prescribed in the notes. There was
no competitive bidding.
No deviations from standard procedure were
authorised. The prescribed method to evaluate quotations was ignored.
Prescribed reports
to the Treasury were not submitted. The breakdown
in conventional good governance checks and controls was extensive.
[36]
Ms Pino says that she stumbled onto the connection between Mr Diko
and Royal Bhaca by chance.
She says that she recognised the glaringly
obvious implications having regard to the, apparently well known,
networks of connections
with Dr Masuku, and Mrs Diko as the
Presidential spokesperson. She took it up with Ms Lehloenya, her
superior. Ms Pino told the
SIU that she had said to Ms Lehloenya that
Royal Bhaca “had to go away” to avoid a scandal.
According to Ms Pino, Ms
Lehloenya said in reply: “The MEC
wants his people”. Ms Lehloenya, in related proceeding before
the Special Tribunal
denied this remark, but nevertheless explained
her conduct as having been dictated by the MEC and the Premier.
Whether or not the
remarks of either person are true is irrelevant to
this case because the criticism complained of in the SIU report, does
not rely
on these remarks necessarily being true. The sensationalism
evoked by these remarks has tended to cloud what the true gravamen of
the criticism of Dr Masuku was as set out in the report.
[37]
On 6 April, Ms Pino emailed her concerns about procurement
improprieties to Professor Lukhele,
the Head of Department (HOD) of
the GDoH, listing the irregularities she was aware of and alleging
that Ms Lehloenya was making
the deals with the suppliers entirely on
her own, a breach of the Treasury Rules and a breach of the Supply
Chain Management (SCM)
regulations of the GDoH. Among the other
specific irregularities alleged were that the suppliers were not on
the CSD, deviations
from the peremptory procedures were done ex post
facto and the Treasury notes were being ignored. This was a
formidable list of
breakdowns in the governance of the procurement
function.
[38]
Dr Masuku was told of all of this by Prof Lukule and Dr Masuku’s
special adviser, Dr Ngcwabe,
on 7 April. It was treated by them as a
“fall out” between Ms Pino and Ms Lehloenya. Why this
luke-warm perspective
was adopted is not explained. Whether the
dismissiveness was influenced by a pejorative gendered view that it
was a mere spat between
women remains an open question. They decided
to call in the provincial internal auditors to have a look.
Predictably, a hostile
relationship with Ms Lehloenya ensued and Ms
Pino was, on 10 April, removed from the Covid procurement team. This
was another flag
that went unnoticed and unappreciated. The letter
inviting the auditors was sent on 17 April – ten days after the
issue had
been raised with Dr Masuku. This delay too, is unexplained.
[39]
On 20 April Ledla was appointed as a supplier by Ms Lehloenya.
Significantly, this occurred almost
straight after the auditors were
called in but before the audit per se could begin. However, the
preliminary dealings between GDoH
and Ledla began earlier, on 9
April, when it was registered on the CSD. However, that
registration did not include the supply
of PPE, an elementary
disqualification to trade with the GDoH in such goods. On 13 April
Ledla quoted to supply PPE goods for R139m.
Among the goods was a
quote for the supply of 1m bio-hazard care bag liners at R7.00 each,
an item that deserves notoriety because
they were purchased for 0.95
c per bag, a stupendous mark-up, doubtless in poll position in the
Greed Stakes. Despite the
fact that, at least formally, the
directors of Ledla are Mr and Mrs Lehong, this quote had initially
been created by Mr Diko. Ms
Lehloenya had modified it on 13 April,
and it was resent on 20 April. The inference of cosiness is evident.
[40]
On 30 April Ms Lehloenya cancelled the letters of commitment to Royal
Bhaca. In the SIU investigation
when a search was conducted on 28
July, the invoices submitted by Royal Bhaca could be not found in the
data base; a most curious
circumstance. On 14 May Ms Lehloenya gave
an instruction that all the goods supplied by Royal Bhaca be
redesignated as “donations”.
The SIU interpretated these
steps as an attempt to cover up the involvement of Royal Bhaca.
[41]
The estimate of the SIU is that in respect of irregular expenditure
that was attributable to
prices being paid in excess of the Treasury
prescribed limits, some R30m was disbursed.
[42]
The SIU expressed the opinion that the evidence gathered suggested
that Ms Lehloenya and Ms Pino
had arbitrarily concluded contracts in
flagrant violation of a raft of laws and regulations. These officials
and the suppliers
are the subjects of a referral to the Special
Tribunal in which proceedings are at present ongoing to recover the
disbursements
made.
The
role of Dr Masuku
[43]
Thus far the conduct of the officials of the GDoH and of the
suppliers have been addressed. I
turn now to the evidence gathered
that involves Dr Masuku personally.
[44]
Several interviews were conducted by the SIU’s investigator.
Statements were obtained from
inter alia, Ms Pino and Mr Diko. Ms
Lehloenya had resigned and as is evidenced in related proceedings
against her in the special
tribunal, she offers her own exculpations
and was not interviewed for the purpose of the SIU report of 17
September and 1 October,
now under review.
[45]
The central issue traversed in the interview with Dr Masuku was how
this scandal could take place
on his watch without his knowledge and,
moreover, when he got wind of irregularities, did he do what was
expected of him in his
role as MEC. His steadfast stance throughout
was twofold: not only did he know nothing whatsoever about the
irregularities but
that it was proper that he be totally hands-off in
relation to anything that had to do with procurement. The view he
took was that
the officials of the GDoH were solely responsible for
procurement matters and any malfeasance that resulted. He had no role
in
securing good governance over their area of responsibility. For
this perspective he pointed to the various statutory and regulatory
instruments which impose duties on the accounting officer, ie the
HOD, Prof Lukhule, and the absence of reference to the political
head
in such instruments. He expressed shock that Mr Diko’s company
had won these contracts and he had not at once been informed.
[46]
Dr Masuku’s ignorance of the irregularities was brought into
doubt by an email sent to
him by Ms Lehloenya on 1 April 2020. It
stated that “as requested” by him she was sending him the
list of suppliers.
The list included Royal Bhaca and for good measure
identified Mr Diko. The contents of the list, therefore, boldly
stated the very
facts that were, on Dr Masuku’s own view,
shocking to him. Dr Masuku denied knowledge of the email. In a
statement composed
to record the substance of the interview he
confirmed that was the position. He stated that he discovered that
Royal Bhaca or Mr
Diko had been given contracts by GDoH only in
mid-May when prompted to check whether one, Hamilton Ndlovu, who was
a momentary
celebrity as a result of the purchase of a fleet of
luxury cars from the proceeds of a contract with the National Health
Laboratory
Service, had also been given contracts by GDoH. He
was shocked to learn that Mr Diko had received a contract. His view
was
that he ought to have been told by the officials. Dr Masuku does
nowhere offer to explain why he did not respond in similar fashion
on
7 April when Ms Pino’s allegations were communicated to him.
[47]
The interview with Dr Masuku had been conducted on 14 August. The
statement was prepared in draft
and sent to Dr Masuku. He signed on
20 September and returned it. The first letter of the SIU reporting
to the premier was dated
18 September. Thus, from the first
time Dr Masuku was confronted with the email until the SIU reported,
35 days had elapsed.
The significance of this is that in the review
application Dr Masuku now offers an elaborate explanation of how the
email came
to be sent to him which, so he argues, demonstrates the
innocence of the communication. He now says that he belatedly
remembered
the mail but never opened it. It was sent at midnight by
Ms Lehloenya. The email bore a relation to an offer by Patrice
Motsepe
or his Foundation to put up funds to buy PPE and for that
purpose wanted to know who the suppliers were. In following up on
this
offer he solicited a list of suppliers from Ms Lehloenya.
Nevertheless, he says did not bother to read the email. It is
unnecessary
to go into that explanation because it contributes
absolutely nothing of value to the relevant enquiry into whether the
SIU acted
rationally. Dr Masuku had a full opportunity to furnish the
new version to the SIU in the 35 days mentioned, yet he chose not to
do so. Axiomatically, no irrationality can attach to not giving
attention to information which was withheld from the SIU.
The
Criticism of Dr Masuku
[48]
The report reads as a commentary on the evidence gathered. The
opinions of the SIU on what the
evidence suggests are wide ranging.
However, it is unnecessary to pick away at the minutiae; the
following summary suffices.
[49]
In addition to the facts specific to the two companies and Mr Diko’s
involvement as described
which was the heart of the investigation,
the SIU took note of some general circumstances in the administration
of the GDoH too
and Dr Masuku’s relationship thereto as
political head.
[50]
The SIU points to the record of poor management, vacancies in senior
posts, and the resultant
challenge that was faced by the allegedly
administratively enfeebled GDoH when it was designated the
centralised procurement agent
for the whole provincial government.
These circumstances, so it opined, made it questionable for GDoH to
accept the burden of being
the centralised agent of PPE procurement.
The SIU asks the question whether Dr Masuku cynically supported the
designation as centralised
procurement agent for “nefarious’
purposes to promote the opportunity to enrich his friends and
himself. No actual
conclusions are drawn. Allied to these
observations, the SIU drew attention to the compact concluded between
Dr Masuku and the
Premier upon taking office. The compact included
several key performance indicators (KPIs) which included a need to
address and
remedy well-known shortcomings in the SCM that had
lingered for some years. In the opinion of the SIU Dr Masuku had not
lived up
to his commitments, which crucially included addressing the
vacancies at senior level and related management systems issues.
[51]
Dr Masuku is criticised for his weak response to the whistle being
blown by Ms Pino on 7 April.
Although the auditors were called in -
over a week later, a leisurely pace indeed – Ms Lehloenya was
left in place to continue
perpetrating irregularities including an
attempted cover-up to try to erase Royal Bhaca’s presence and
promote Ledla as an
alternative supplier. No awareness on the
part of Dr Masuku of a need to take immediate action was apparent,
despite Covid
procurement being a manifest area of sensitivity.
[52]
The SIU expressed scepticism of Dr Masuku’s professed ignorance
based on the email he plainly
solicited from Lehloenya. The
scepticism was justified. Nevertheless, his claim of ignorance was
taken at face value for the purpose
of the recommendation.
[53]
The text of the report, as a whole, is substantially padded. It was,
for example, not essential
to cite every possible piece of
legislation imaginable that prescribes good governance for organs of
state. Some linkages between
the MEC’s role and the statutory
and regulatory provisions are strained, but really do not go beyond
hyperbole. The posing
of an unanswered question about why Dr Masuku
supported a decision of the executive council to centralise
procurement in the GDoH
and speculating that it might have been for
as nefarious purpose was unsubstantiated upon a holistic appreciation
of the information
gathered. Indeed, in the decision to designate a
centralised procurement agent for PPE for the province, the obvious
candidate
was the Department that usually sourced such goods. The
monthly reports that a political head is obliged to read and actions
he
would be expected to take, pursuant to sections 39, 40 and 63, of
the Public Finance Management Act 1 of 1999 (PFMA), for example,
would not have provided him in time, with useful information,
assuming the reports could contain anything useful, to stop the
malfeasance, and thus the allusion thereto was superfluous.
[54]
However, in the result, what is important is to audit the
“recommendation” in paragraph
20 of the SIU report of 1
October 2020, with what, if anything, supports it:
“
After
consideration of what we stated above the SIU recommends to the
Premier that there are sufficient grounds to take administrative
action against the MEC for purposes determining his suitability to
hold office as the responsible MEC for Health …. Thus
the SIU
recommends, based on the SIU’s view, based on the evidence
gathered, that the MEC failed to execute his function
in compliance
with … the Constitution, especially sections 133, 135, and 136
…with his general oversight responsibilities
in respect of the
affairs of the GDoH which contributed thereto that the GDoH failed to
comply with the prescripts of sections
33, 195 and 217 of the
Constitution and his obligations as the executive authority of the
GDoH in terms of section 63 of the PFMA”
[55]
A fair reading, in plain language, of the conclusions, is that what
the GDoH did was a violation
of mandatory good governance and Dr
Masuku neglected to properly oversee its operations; had he done so,
he could have prevented
the irregularities with proper systems put in
place to alert him of what was actually happening. Dr Masuku
was plainly not
totally unresponsive to the news of irregularities;
he did endorse the internal audit on 7 April. What he is criticised
for is
that this decision was, in context, weak and he should have
been properly alert and taken direct action himself, but because he
did not, the malfeasance was allowed to continue. He is not accused
of corruption or nepotism, although scepticism is expressed
at times
about his explanations. Is the conclusion irrational having regard to
the facts known?
The
Grounds of complaint advanced by Dr Masuku
“
Procedural”
complaints
[56]
The major procedural complaint is that Dr Masuku was not afforded an
opportunity to challenge
the “findings” or to comment on
the evidence gathered.
[19]
This complaint is ill founded.
[57]
The SIU interviewed Dr Masuku in which he had the fullest opportunity
to share all he knew. Moreover,
he was confronted with the e-mail of
1 April which prima facie showed he knew on that date that Royal
Bhaca had been contracted.
He had the benefit of audi alterem
partem.
[58]
The notion that he be given a copy of the report before its release
is a misconception of the
SIU’s function. As addressed earlier,
it is an investigative entity which does not itself make
determinations. Similar
complaints were made in the case of
Maxwell v Department of Trade and Industry
[1974] 2 ALL ER 122
(CA) a matter concerning an investigation in terms of the Companies
Act; ie an investigation under statutory authority, into malfeasance
in the governance of the Pergamon Press Ltd. The complaints were
dismissed as being inappropriate in the context of an investigative
process. Lord Denning, at p127, said:
“
First
and foremost, when a matter is referred to an inspector for
investigation and report, it is a very special kind of inquiry.
It
must not be confused with other inquiries which we have had to
consider. Remember what it is
not
.
It is
not
a
trial of anyone, nor anything like it. There is no accused person.
There is no prosecutor. There is no charge. It is not like
a
disciplinary proceeding before a professional body. Nor is it like an
application to expel a man from a trade union or a club,
or anything
of that kind. It is not even like a committee which considers whether
there is a prima facie case against a person.
It is simply an
investigation, without anyone being accused.
Second,
there is no one to present a case to the inspector. There is no
'counsel for the commission'. The inspector has to do it
all himself.
He has himself to seek out the relevant documents and to gather the
witnesses. He has himself to study the documents,
to examine the
witnesses and to have their evidence recorded. He has himself to
direct the witnesses to the relevant matters. He
has himself to
cross-examine them to test their accuracy or their veracity. No one
else is there to cross-examine them. Even if
a witness says things
prejudicial to someone else, that other does not hear it and is not
there to cross-examine him.
Third, the
investigation is in private. This is necessary because witnesses may
say something defamatory of someone else; and
it would be quite
wrong for it to be published without the party affected being able to
challenge it. The only persons present
are the inspectors and their
staff, the shorthand writer, the witness and his lawyers, if he
desires them.
Fourth, the
inspectors have to make their report. They should state their
findings on the evidence and their opinions on the matters
referred
to them. If their report is to be of value, they should make it with
courage and frankness, keeping nothing back. The
public interest
demands it. It may on occasion be necessary for them to condemn or
criticise a man. Before doing so, they must
act fairly by him. But
what does fairness demand? That is the question.
Forbes J
thought that, in order to do what was fair, after hearing the
evidence and studying the documents, the inspectors ought
to come to
a conclusion (
which
was necessarily tentative
)
and put the substance of that conclusion to the witness. He was led
to that view by the observation of Sachs LJ in
Re
Pergamon Press Ltd
([1970]
3 All ER at 544, [1971] Ch at 405). I do not think that is right.
Just think what it means. After hearing all the evidence
the
inspectors have to sit down and come to
tentative
conclusions.
If these are such as to be critical of any of the witnesses, they
have to reopen the inquiry, recall those witnesses,
and put to them
the criticisms which they are disposed to make. What will be the
response of those witnesses? They will at once
want to refute the
tentative
conclusions
by calling other witnesses, or by asking for further investigations.
In short, the inquiry will develop into a series
of minor trials in
which a witness will be accused of misconduct and seek to answer it.
That would hold up the inquiry indefinitely.
I do not think it is
necessary. It is sufficient for the inspectors to put the points to
the witnesses as and when they come in
the first place. After hearing
the evidence, the inspectors have to come to their conclusions. These
need not be tentative in the
least. They can be final and definite,
ready for their report.”
[59]
The second complaint is that certain people were not interviewed.
The point of this contention
was to suggest that the SIU did
not apply its mind to all the evidence. The potential evidence of Ms
Lehloenya, Dr Ngcwabe, and
of Prof Lukhele, are mentioned as notable.
However, the complaint is empty of substance. Even if it be assumed
that all three persons
were readily available to the SIU prior to
this report, Dr Masuku does not state what valuable information they
have to contribute.
Paradoxically, the statement of Ms
Lehloenya given in the proceedings against her, are adverse to Dr
Masuku, because she
there alleges her conduct was dictated by Dr
Masuku and by the Premier, a claim which may or may not be true and
about which this
judgment need not express a view.
[60]
Third, it was alleged that the attempt by the SIU to obtain further
information after the reports
were filed on 1 October evidenced
irrationality because it had already made its “findings”.
This perspective is misdirected.
The reports make plain that the
investigations as a whole were not yet complete, and the corruption
leg is still being pursued,
an aspect which does not form the basis
for the criticism of Dr Masuku in this report. Curiously, Dr
Masuku refused to cooperate
with that aspect of the matter.
Did
the SIU act ultra vires?
[61]
The submission is advanced that the SIU cannot compel another organ
of state to do anything.
This is perfectly correct. However, the SIU
never purported to do so by expressing its recommendations in its
report.
[62]
Anterior to that submission is the idea that the SIU has no power to
make “recommendations
concerning remedial action”.
Section 4 of the SIU makes no mention of “recommendations”.
If the term “recommendation”
is understood as a term of
art to identify the expression of public power; eg, as exercised by
the Public Protector, plainly the
SIU lacks such a power. However, it
is inescapable that an investigator must form an
opinion
about
the material gathered. The very act of enquiring, interviewing and
searching is driven by a perception of a perceived pattern
of
conduct, however tentatively held, which is tested by the
investigation. When furnishing a report, an express obligation on
the
SIU, it is obvious that the material must be ordered and rendered
coherent to substantiate an opinion on what has been discovered
or
not discovered. In my view, the recommendations of the SIU must be
understood in this sense: a legitimate comment on whether
any
official had been culpable of improper activity.
[63]
The Premier was, therefore, not instructed to do anything. An opinion
was expressed that there
was a case to meet on the grounds of neglect
of duty. The Premier had no obligation in law to give that opinion
any weight, nor
is there any basis in the evidence to hint that the
Premier thought he was bound by the recommendation, nor indeed
whether the
Premier drew his own conclusions from the raw facts
discovered or gave weight to the recommendations. Moreover, whether
the removal
of a political office-bearer is an instance of
“administrative action” is a question not necessary to
address in this
judgment.
Is
the SIU’s opinion that Dr Masuku was derelict in his duties as
MEC irrational in relation to the facts?
[64]
The nature of the SIU’s functions and the character of its
reports have already been addressed.
Many of the complaints by Dr
Masuku are at cross purposes with these considerations; in the main
the complaints confuse a deliberative
decision with an investigative
one. The SIU’s opinion does not vouch for the truth of the
allegations made by witnesses.
It does vouch for the hard objective
evidence gathered which is backed up by documentation.
[65]
True enough, the SIU traversed several aspects of an MEC’s role
and the obligations of
an organ of state to operate strictly in
accordance with various laws regulations and treasury instructions.
However, the heart
of the case in support of the opinion held by the
SIU comes down to two aspects.
65.1
The
first aspect is that Dr Masuku was neglectful in his duties, as
illustrated by his failure to attend to his emails, despite
being in
a critical leadership position. This conduct justifies an adverse
inference about his lack of professionalism and lack
of care in
discharging his functions. His conduct shows a lack of judgment and
of diligence. His version as given to the
SIU was faithfully
reproduced. What he is criticised for is not for lying; his ignorance
was taken at face value, despite the scepticism
it fully deserved,
but for neglect. The version given that he did not read an email sent
to him which he had requested is a foundation
for the opinion of his
neglect of his role. Indeed, what professional person could excuse
not attending to his emails? Prima facie,
Dr Masuku’s own
version is a confession of unprofessionalism and dereliction of his
duties. Axiomatically, had he bothered
to attend to his emails, and
done so on 1 or 2 April, he would have been shocked at Royal Bhaca
getting a contract then and not
only in mid-May some 6 weeks later.
He could have stopped the debacle there and then.
65.2
The
second aspect is that, as the political head of the GDoH, which had
taken on the front-line role of centralised PPE procurement
agent for
the entire provincial government, in the face of the greatest public
health risk in a century, and being the co-chair
of the command
council of the province, and, necessarily, being aware of the perils
of irregularities if appropriate controls were
not in place to
regulate the fraught and vulnerable process of emergency procurement,
he was so deaf and blind to these risks that
he took no steps at all
to lead and protect his department from stumbling into the
predictable chasm.
[66]
Dr Masuku’s rebuttal is simply to protest that he was entitled
to remain wholly detached.
even in a pandemic. When news of
improprieties was brought to his attention, he was content to fob off
the investigation to the
internal auditors and take no steps to
inform himself at all to assess the status quo and intervene
urgently.
[67]
In my view, the SIU was not at all irrational in forming its opinion.
The SIU saw no crime having
been committed by Dr Masuku. The SIU saw
no basis for civil action against Dr Masuku. Indeed, it decided there
was no action it
could or should take. The SIU faithfully reported
what it had learned to the Premier and to the President. It
deemed Dr Masuku’s
conduct to be wanting. To form such an
opinion is plainly within its scope of functions. No irrationality
can exist in the SIU
being disappointed by Dr Masuku’s
discharge of his role. The fact that Dr Masuku held a different view
about his accountability
is unimportant. The SIU has no obligation to
defer to Dr Masuku’s perspective, which he voiced fully and was
part of the
matrix of facts investigated.
The
Order
The application is
dismissed with costs, including the costs of two counsel.
SUTHERLAND
ADJP
RAULINGA
J
SIWENDU
J
Date
of hearing:
21 January 2021
Date
of judgment:
12 April 2021
For
the Applicant:
Adv
W R Mokhare SC,
With
him, Advs M Majozi, C Lithole and V Rikhotso,
Instructed
by Motalane Incorporated.
For
the First Respondent:
Adv
Vincent Maleka SC,
With
him Adv Nicole Mayet,
Instructed
by the State Attorney, Pretoria.
[1]
Both the Second and Third
respondents abide the decision of this court. Neither filed
affidavits.
[2]
The investigations have led to
several entities who were contracted to supply goods to the GDoH and
certain officials of the GDoH
being brought before the Special
Tribunal established under the SIU Act. An order preserving their
assets from dissipation has
been made pending further proceedings to
recover money irregularly spent.
[3]
The SIU was established by
Proclamation R118 on 31 July 2001. The President issued terms of
reference to address the procurement
of PPE by the Gauteng
Provincial Government on 23 July 2020.
[4]
See footnote
2.
[5]
See infra, Paragraph 63 of this
judgment, where the evidence on record as to the Premier’s
motivation for the decision is
addressed
.
[6]
In
Electronic
Media Network v eTV
(2017) 9 BCLR 1108(CC)
; [2017] XACC 17.at [122]
it was held that a review under the principle of legality does not
require that the impugned act have an external or legal effect.
[7]
See too most
recently: Compare
Wellness
Medical Scheme v Registrar of Medical Schemes
2021 (1) SA 15
(SCA)
at [13].
In respect of the basic principle, see
:
Pharmaceutical Manufacturers Association of South Africa: in re Ex
Parte President of the RSA
[2000] ZACC 1
;
2000 (2) SA 674
(CC) at esp [85] –
[86] and [90]
[8]
It was also argued that the
Court should exercise a discretion to withhold the remedy of review.
That invitation has been declined
and the notion is not addressed in
this judgment
.
[9]
Section
2(1)(a) (ii) read with Section 4(1)(g) of the SIU Act.
[10]
The
Public Protector Act 23 of
1994
.
[11]
The Commissions Act 8 of 1947
[12]
See
Brenco,
esp at [28], [29] and [72].
[13]
R v Pergamon
;
but see the later episode:
Maxwell
v Board of Trade and Industry
,
cited infra, in paragraph [58] of this judgment.
[14]
EFF v Speaker, National Assembly
2016 (3) SA 580
(CC) at [71] – [73];
SABC
v Democratic Alliance 2016 (2) 522 (SCA) at [53]
[15]
Corruption Watch v Arms
Procurement Commission
2020 (2) SA 165
(GP)
at [50] – [51]
[16]
The strictly circumscribed scope
of a SIU’s activity is illustrated in
Toto
v SIU & Others
2001
(1)
SA 673
(ECD). The SIU and interested parties had reached an
agreement to refer a question about a party’s right to certain
property
to the Special Tribunal. The Court held no authority
had been vested in the SIU by its terms of reference to bring such
proceedings, which therefore were declared null and void. See too
:
Konyn & Others v SIU
1999 (1) SA 1001
(TkHc)
The
character of the Special Tribunal as the “adjudicative”
instrument of the SIU Act was addressed by Froneman J
(as he then
was) in
SIU v
Ngcinwana & another
2001
(4) SA 774
(ECD) thus contrasting the role of the special tribunal
with the SIU itself.
[17]
C. Hoexter, “A matter of
Feel? Public Powers and Functions in South Africa”, chapter 7,
p149 in Elliott, Varutas and
Stark (eds)
The
Unity of Public law? doctrinal, theoretical and comparative
perspectives (2018) Hart, London.
[18]
In Oosthuizen’s
Transport (Pty) Ltd & Others v MEC, Road Traffic Affairs,
Mpumalanga
2008 (2)
SA 570
(T) in relation to the preliminary recommendation that a
transport permit be revoked, the recommendation was held to
reviewable,
albeit under PAJA.
[19]
The use of the term “findings”
to describe the conclusions reached in the report are problematic.
Both parties were
content to do so. However, the term is not free
from baggage. In my view, the term “finding” is
appropriate to a
decision which is
determinative
of a set of facts or issues, such as results from an adjudicative
decision, in which, after due deliberation an interpretation
of
circumstances is arrived at and articulated as a “finding”.
An investigator makes no “findings” in
that sense. In my
view, it should be avoided when describing non-adjudicative actions
and decisions.