SIU case over R150m Digital Vibes contract to go ahead

Former Health Minister Dr. Zweli Mkhize has lost his bid to delay the Special Investigating Unit's (SIU's) case pending his high court review of its damning report into the unlawful R150 million Digital Vibes contract.

Mkhize, the chairperson of the National Assembly's portfolio committee on cooperative governance and traditional affairs, had wanted the Special Tribunal to stay the SIU's main application to force him, other individuals and companies to repay R150m to the National Department of Health (NDOH), including interest at the prescribed rate calculated from the date of the judgment.

In the matter, which is still pending before the tribunal, the SIU also wants the repayment to be less the amounts already successfully forfeited to the State and successfully recovered from several respondents.

Additionally, the corruption-busting unit wants the costs to be paid by Mkhize, Digital Vibes, its director Tahera Mather, Mkhize's former personal assistant Naadhira Mitha, petrol station manager Radha Hariram and Welcome Mthethwa, the husband of former ANC staffer Makhosazana Mthethwa, and any other respondent opposing the application.

In his Gauteng High Court, Pretoria application, Mkhize is seeking an order declaring the SIU's conduct in making adverse findings, conclusions and recommendations against him in its investigation into a contract awarded by the NDOH to Digital Vibes to be unlawful and unconstitutional.

The former KwaZulu-Natal Premier also wants the unit's referral letter to President Cyril Ramaphosa regarding its investigation of the NDOH/Digital Vibes contracts to be reviewed and set aside as well as its report in so far as it makes adverse findings, conclusions and recommendations against him.

Mkhize had argued that the main proceedings before the tribunal and the high court review application were interconnected and that the SIU investigation was tainted by irregularities and any relief sought against him stemming from the unit's report is similarly tainted.

He said there was a possibility of two conflicting judgments arising if the two proceedings proceed and it will be impossible to "unscramble the egg" should the tribunal rely on impugned SIU investigations.

Mkhize also complained that any conflicting judgments will lead to unfair and unjust results and would be hugely prejudiced by a ruling from the tribunal based on an investigation whose lawfulness is impugned.

He also argued that the SIU failed to establish any basis to link transactions and to show that he benefited from the Digital Vibes contracts.

In its opposition to Mkhize's stay application, the SIU stated that there were many respondents and to stay the application against one while proceeding against others will lead to unjust results.

The unit insisted that there was no possibility of conflicting judgments.

According to the SIU, its case against Mkhize was based on the evidence that has been adduced in the application before the tribunal and that his review application does not seek to review and set aside its decision to institute proceedings aimed at setting aside the impugned transactions and recover funds from him.

The SIU told the tribunal that even if the letter and the report were to be set aside such a decision would have no effect on its application before the tribunal.

In her judgment handed down last week, Special Tribunal Judge Thandi Norman ruled that whether there is evidence or not supporting the SIU case against Mkhize, is a matter that will be decided by resorting to the evidence and not the report.

Judge Norman found that in these circumstances the report cannot be central to the determination of Mkhize's alleged joint liability to repay monies to the NDOH.

"Mkhize does not take issue with the information obtained by the SIU where it shows that Digital Vibes’ appointment was tainted by irregularities. That indirectly affirms the investigation of the SIU as not being a witch hunt against Digital Vibes, on his version.

"That, in turn, has a bearing on whether it would be convenient to sever the joint and several claims against Mkhize, Digital Vibes and other respondents by staying the application against Mkhize," reads the judgment.

The judge found that even if she were to order a stay against Mkhize only, the effect of such an order against one of the respondents, when they are sued jointly and severally, has the potential to frustrate the progress of that claim against the others.

Judge Norman said to stay the SIU application would lead to piecemeal litigation and that is undesirable.

"I am satisfied that on the facts before me a decision made on review by the high court will not extinguish or resolve the monetary claim that the SIU has brought against Mkhize and the other respondents in the application serving before this tribunal," the judge explained in her decision to dismiss with costs Mkhize's bid to stay the SIU application pending the outcome of his high court review application.

Mkhize's legal representatives, TL Mbili Attorneys, did not respond to requests for comment on Thursday.

The SIU has indicated that a case management meeting will be arranged to seek direction from the tribunal on timelines for further proceedings in the main application.