The first casualty of the Covid-19 personal protective equipment (PPE) scandal in Gauteng, former health MEC Bandile Masuku, is fighting back in court, condemning the Special Investigating Unit's (SIU's) findings against him as "garbage".
In a 123-page affidavit submitted in an urgent application in the Pretoria high court on Friday, Masuku has gone to court to set aside adverse findings in two letters from the SIU to Gauteng premier David Makhura that formed the basis of the decision to fire him. Masuku said the SIU had ignored material facts; its findings were not backed up by evidence and were based on a lack of understanding of the applicable laws.
Masuku's supporters say he is the victim of a powerful faction in Gauteng that wants to remove Makhura from the position of ANC chair in the next provincial conference.
Masuku and his friend, presidential spokesperson Khusela Diko, will now have to appear before the party's disciplinary committee for their alleged role in the scandal.
"It's all about the provincial conference. The move is aimed at eliminating those who are a threat to some of them," said an ANC leader sympathetic to Masuku and Diko.
Makhura had tried to shield Masuku by not appointing a new health MEC while the SIU investigation was under way. However, he was defeated at the ANC provincial executive committee by those pushing for a new MEC to be appointed.
Gauteng government spokesperson Thabo Masebe said Makhura would abide by the ANC instruction to appoint a new MEC.
The disciplinary process is expected to start in the coming week and tension is mounting over who should lead it.
At this week's provincial executive committee meeting, Masuku's detractors pushed for provincial disciplinary chair Ntombi Mekgwe to recuse herself because she had sided with Masuku and Diko during debates.
ANC spokesperson Bones Modise said party officials would formulate charges tomorrow and decide who will chair the disciplinary committee.
It's all about the provincial conference. The move is aimed at eliminating those who are a threat to some of them
— ANC leader sympathetic to Bandile Masuku and Khusela Diko
Masuku and Diko are implicated in a PPE contract awarded to Royal Bhaca Projects, owned by Diko's husband, Thandisizwe. The contract was later cancelled but the SIU said it was then awarded to Royal Bhaca's "proxy", Ledla Structural Development. In recent weeks the SIU told Makhura of its findings and Masuku was fired.
"The painstakingly flavoured and flamboyant adjectives contained in the [SIU's] report were clearly meant to ensure that I unjustifiably get propped up and nailed as the proverbial posterboy of Covid-19 related corruption. This I cannot leave unchallenged," Masuku says in his affidavit.
He says it was the provincial government's decision - following the national government's model - to centralise procurement in the department of health. It was not his decision.
Masuku was dealing with the SIU's finding that he was "actively involved (in the capacity of co-chairperson)" in the decision to make the health department the central procurement agent for the whole province.
The SIU said he should have known the department had a long history of negative audits and had been struggling with its supply chain management. "As such the decision to promote or support any proposal for the centralisation [for PPE] made no sense at all and was irrational to say the least."
The SIU went on to say: "Consequently, the MEC's support of this proposal may have been for nefarious purposes… to potentially benefit himself, his wife or their friends."
But Masuku says there is no evidence to back up the claim that he lobbied for centralisation. "The decision was in line with what the national government had done and what other provinces were doing, which was to ensure that the department responsible for health care issues and deals with procurement of PPE."
He says his department achieved an unqualified audit and there was no basis to doubt that it could handle the procurement.
"I take great exception to the language used by the SIU as it is not supported by any evidence but is simply an allegation plucked out of the air and used for atmosphere, grabbing of headlines and for effect."
Masuku also says that, in terms of the law, the MEC is not directly involved in procurement. "I, as an executive authority, was never involved in the PPE procurement nor could I have asked to be involved. Any involvement would amount to unlawful interference with operational matters that do not fall within the ambit of functions performed by an executive authority."
He says that, as MEC, the "proverbial buck" stops with him, but "compliance with instruction notes in procurement is the granular operational detail that does not ordinarily fall within the realm of an executive authority".
And he did not know that Royal Bhaca had tendered for PPE contracts until May, he says. An e-mail to him from former CFO Kabelo Lehloenya on April 1, relied on by the SIU to show that he knew or ought to have known about Royal Bhaca, had been taken out of context, he says.
The e-mail listed the recipients of PPE contracts and included Royal Bhaca. But Masuku said he never even opened the e-mail. "I only saw this e-mail for the first time on 14 August when I was interviewed by members of the SIU as I had never opened it prior thereto."
Masuku says he asked for the list because the Motsepe Foundation had asked for it so the foundation could buy PPE and then donate it to the department. He had asked that the list be forwarded to the foundation and once he knew this was done, he did not need to open the e-mail and in fact did not do so.
"I had no other reason to open the e-mail as I was not involved in SCM [supply chain management]…
"The erstwhile CFO, the chief director, SCM and the head of department were running that process." He says that when other service providers were appointed, he had not been e-mailed about this.
He had told this to the SIU, but the SIU seemed to have not properly considered his version, he says.
Nor had the SIU investigators who interviewed him ever put to him the allegation by supply chain chief director Thandy Pino that Lehloenya had, when Pino asked her about the appointment of Royal Bhaca, said "the MEC wants his people".
"I did not instruct the CFO to appoint RBP as that instruction would be unlawful, nor did I indicate to anyone for that matter that I wanted my 'own people' to be appointed."
Once concerns about irregularities had been brought to his attention on April 7, within two weeks he initiated an investigation, he says. "Thus before the matter was in the public eye or was reported on by the media… I… took a decision that an investigation to uncover any wrongdoing had to commence."
Masuku says the conclusion that he had failed in his oversight role was "a jump" not supported by the law or the facts.
"With respect, if the state is going to uncover corruption there needs to be better investigative work and investigators ought to be familiar with the elementary tenets of the environment that they are investigating. The findings are simply garbage."
Masebe said the premier would not file a responding affidavit.
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