Pretoria - Former health MEC Bandile Masuku is challenging the adverse findings of the Special Investigating Unit (SIU) against him because it will “hang like an albatross around his neck” for the rest of his life if it is not set aside.
If these findings remain in place, they will continue to impinge on his reputation and dignity, Masuku’s advocate William Mokhari SC told a full bench of the North Gauteng High Court in Pretoria.
He is asking the court to declare the findings and recommendations made by the SIU in a report to be unlawful and invalid.
Mokhari made it clear that Masuku was not challenging his subsequent dismissal by Premier David Makhura but that he was only challenging the findings by the SIU, which he said tarnished his reputation and integrity.
Masuku was suspended by the premier and has already been replaced following the SIU report that he had failed in his duty to conduct oversight of spending on personal protective equipment tenders.
Masuku is challenging the SIU findings on the basis that, according to him, there was no factual or legal basis for the findings and the recommendations made.
He questioned the finding that he had instructed the provincial government to centralise the procurement of personal protective equipment and said the decision was taken by the government following directives from the National Treasury.
The SIU, among others, found that Masuku had instructed the centralisation and supported it for “nefarious” purposes. But Mokhari argued that there was not evidence for this on which the SIU could base its findings.
“The SIU’s findings and recommendations to the premier was final... Its message to the premier was clear,” Mokhari argued.
He added that the SIU did not lawfully do its duty when it launched its investigations as it relied on the investigating officer in the matter’s evidence and did not hear the evidence of other role players.
According to Mokhari, the SIU arrived at its findings “at the speed of light”.
“We say the findings are not based on a shred of evidence, but based on inferences.”
Jude Roland Sutherland, who headed the bench, repeatedly questioned whether the findings of the SIU could be subjected to judicial scrutiny.
He pointed out that the findings and recommendations were merely recommendations handed to the premier, and the latter had the final word in this regard as the SIU does not have the power to sanction anyone.
The judge questioned whether Masuku did not have other avenues open to him if he felt aggrieved that his reputation was tarnished, such as to sue the SIU for defamation.
Mokhari was however adamant that the only avenue open to Masuku was judicial scrutiny.
Judge Thina Siwendu, meanwhile, remarked that she could not understand why Masuku did not seek relief regarding his dismissal by the premier.
“Why has he not challenged the premier who has made the decision?” she asked.
But Mokhari insisted they were fighting the findings, as they were standing like an “albatross” around his client’s neck.
“They can't hang him alive and say he had no remedy,” Mokhari argued.
Advocate Vincent Maleka SC, on behalf of the SIU, questioned why Masuku was taking the SIU on as it simply made recommendations to the premier.
Maleka also argued that Masuku should take responsibility for what had happened regarding procurement of the protective equipment.
He said when Masuku took over the department, he knew it was dysfunctional and rife with financial mismanagement and he was contractually obligated to turn it around and take accountability.
Maleka said to centralise the procurement of the protective items made no sense.
He added that Masuku’s failure to do anything when he did realise that something was wrong in the procurement process, shows a lack of accountability and intervention.
He told the court that Masuku should own up the findings of the SIU, instead of fighting it.
Judgment was reserved.