The labour court in Johannesburg is scheduled to hear an urgent application by suspended head of the Gauteng department of health and wellness Lesiba Malotana to have his suspension lifted.
Gauteng premier Panyaza Lesufi placed Malotana on suspension last month. This comes amid an investigation by the Special Investigating Unit (SIU) into alleged tender corruption within the department and poor performance, including underspending of R725m in the past financial year.
In his application, Malotana asked that the precautionary suspension issued by Lesufi on October 10 be declared unlawful, set aside and lifted. He also asked that his electronic devices be returned and he be allowed to return to work and resume his duties.
Malotana also asked that the media statement issued by Lesufi on October 14 be retracted and a new statement communicating the reversal of the precautionary suspension by the premier be released.
In his founding affidavit Malotana said his suspension was effected without lawful basis, was procedurally flawed and had caused him severe prejudice both personally and professionally.
“I seek relief that will restore my position as HOD, reinstate my access to my tools of trade and correct the damaging public record created by the premier’s media communication premised on the unlawful precautionary suspension.”
Malotana said Lesufi replied exclusively on a recommendation of the SIU that he be placed on precautionary suspension because, in their view, “I was high risk (whatever that means)” and he did not explain certain issues regarding his financial affairs to the SIU’s satisfaction.
Malotana said Lesufi’s conduct was made worse by various flaws he had identified in the SIU report and which, had Lesufi applied his mind, would have made him pause not to place him on precautionary suspension.
“The sole purpose of the precautionary suspension is intended to safeguard the integrity of the ongoing investigation by the SIU. I respectfully submit that this urgent application has been brought to this honourable court prematurely.
— Gauteng premier Panyaza Lesufi
Further compounding prejudice Malotana suffered was that Lesufi had widely miscommunicated the true facts underlying the disciplinary action against him,
Malotana said this miscommunication had the prejudicial effect that he had been suspended on the merits of misconduct allegations.
“But this is not true. The conditions of my being placed on a precautionary suspension was so that the SIU could conduct a full forensic audit.”
Malotana said the SIU’s report made no final adverse findings against him and explicitly required that a forensic audit be conducted so that it could make such final findings.
“The premier’s miscommunication creates the false impression that the SIU report does necessarily make actionable findings against me when it does not.”
In his answering affidavit, Lesufi said the SIU classified Malotana as “high risk” due to the discrepancies between his declared income and lifestyle, with findings including questionable cash deposits amounting to R1.6m.
Lesufi said he was troubled by the classification of Malotana as high risk.
As part of his portfolio, Malotana oversaw numerous matters, specifically the Tembisa Hospital crisis, which had been plagued by allegations of corruption and maladministration over the years.
“As a result of the allegations, as well as the SIU report, I was left with no other option but to place (Malotana) on precautionary suspension to ensure that the investigation into these allegations is dealt with thoroughly.”
Lesufi said the suspension was a precautionary measure and was not punitive as it was not a disciplinary sanction.
“The sole purpose of the precautionary suspension is intended to safeguard the integrity of the ongoing investigation by the SIU. I respectfully submit that this urgent application has been brought to this honourable court prematurely,” Lesufi said.
He said it appeared Malotana conflated precautionary suspension, which was a temporary measure to facilitate an investigation, with suspension, which is a form of disciplinary action.
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