Makhura argues why he can’t be roped into PPE cash recovery

The special tribunal heard oral arguments in a case brought to court by former Gauteng health department CFO Kabelo Lehloenya

Isaac Mahlangu Senior reporter
Gauteng premier David Makhura says there’s no basis for him to be joined in a civil recovery application.
Gauteng premier David Makhura says there’s no basis for him to be joined in a civil recovery application.
Image: Veli Nhlapo

Gauteng premier David Makhura says there's no basis for him to be joined in a civil recovery application launched against the former health department CFO to recover money lost in last year's personal protective equipment (PPE) scandal.

The special tribunal on Thursday heard oral arguments in a case brought to court by former Gauteng health department CFO Kabelo Lehloenya.

Lehloenya wants Makhura and the former head of the provincial health department, Mkhululi Lukhele, also held liable in the third party civil recovery application.

Adv Ngwako Maenetje SC, arguing on behalf of Makhura, said that by the time Lehloenya is found liable for the losses the state incurred in the irregular contracts for the supply of PPE, she would have lost any protection that the state afforded her as an employee and therefore cannot be allowed to claim anything from the state.

“The province and the premier, in their official capacities, cannot be joint wrongdoers in intentional wrongdoing which has lost state protection because that means she lost the indemnity by the state,” Maenetje said. 

Maenetje said the argument advanced in relation to payments made after Lehloenya's departure were, at best, “a claim against any other official who was responsible for those payments”.

The Special Investigating Unit (SIU) has instituted civil recovery proceedings before the special tribunal against Lehloenya and Lukhele for breach of their employment contracts, constitutional and statutory duties as public officials in the awarding of the PPE contracts to Ledla and Beadica in response to the outbreak of the Covid-19 pandemic.

Lehloenya wants the tribunal to also hold Makhura and Lukhele liable for “contributory negligence” should she be held liable for the loss incurred by the state which the SIU is trying to recover from her in terms of the apportionment of damages act.

The former CFO, who left government in May last year when the allegations of corruption emerged, is now facing civil recovery proceedings, expected to resume once judge Lebogang Modiba rules on this application.

Lehloenya has, through her legal representative, Sunday Ogunronbi, argued that she was facing the civil recovery application because a circular issued by the province last year had centralised all procurement relating to the acquisition of PPE by the province, which was issued with Makhura's blessing.

Ogunronbi said that the circular had led to Lehloenya's responsibilities as a government employee being expanded, to place her in the position where she's now facing this action.

He also cited payments made on the same contracts by the provincial government after May 28, when Lehloenya had already left government, to illustrate that Lukhele, Makhura and the provincial government have to be joined as “concurrent wrongdoers” should the SIU succeed in its application.

Modiba reserved judgment.

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