Former Gauteng health MEC Bandile Masuku loses court bid against SIU

Former Gauteng health MEC Dr Bandile Masuku has lost his court bid to overturn a Special Investigating Unit report that led to his sacking.

Masuku was removed from the post late last year by premier David Makhura after an SIU report found he had failed in his duties as MEC during the alleged dodgy procurement of Covid-19 personal protective equipment by his department.

His department awarded multimillion-rand contracts to Royal Bhaca, a company owned by the late Nkosi Madzikane Thandisizwe Diko II, husband of Khusela Diko, the suspended spokesperson of President Cyril Ramaphosa.

In his judgment, Roland Sutherland of the North Gauteng High Court dismissed Masuku's application with costs.

“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 learnt to the premier and to the president,” said Sutherland.

“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. 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.”

He said Masuku's rebuttal about his knowledge of the alleged corruption in his department was 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,” said Sutherland.

He further criticised Masuku for being “deaf and blind” to the risks of alleged irregularities in his department and that he took no steps to protect it.

“The first aspect is that Dr Masuku was neglectful in his duties, as illustrated by his failure to attend to his e-mails, 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 version given to the SIU was faithfully reproduced. What he is criticised for is not lying — his ignorance was taken at face value, despite the scepticism it fully deserved — but for neglect,” said Sutherland.

The judge further explained that Makhura was not instructed by the SIU to fire Masuku but he was given an opinion that there was a case of neglect by the former MEC.

“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.”

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