The legality of a March 2020 circular issued by Gauteng Premier David Makhura, which “caused chaos in the province” regarding Covid-19 procurement, is at the centre of a R42.8-million claim against him.
At a Special Tribunal hearing on Thursday, lawyers for former Gauteng health department chief financial officer Kabelo Lehloenya argued the circular, which centralised Covid-19-related procurement that included personal protective equipment (PPE), was unlawful, and the premier should be held personally liable for the province’s losses.
Gauteng procurement was centralised in the provincial health department, according to Makhura’s circular.
Lehloenya brought an application to the tribunal to include Makhura and the provincial health department’s former head, Professor Mkhululi Lukhele, in the civil case instituted against her by the Special Investigating Unit (SIU).
The unit seeks to recover losses suffered by the state — more than R42.8-million — from Lehloenya and Lukhele for their “intentional, unlawful and wrongful misconduct” in awarding of a procurement contract to Ledla Structural Development and Beadica 430 for the supply of PPE that included surgical masks, face masks and shields, as well as hand sanitisers, among other supplies.
In its particulars of claim filed at the tribunal, the SIU argued that, in April last year, Lehloenya “unlawfully and irregularly” awarded Ledla a R139-million contract for Covid-19 supplies because the procurement was not an open tender process, and nor was Ledla part of the government’s central supplier database, as required by treasury regulations.
The SIU further argued that Lehloenya had “arbitrarily” modified Ledla director Thandisizwe Diko’s quotation, causing losses for the state.
“The prices quoted by Ledla for Covid-19 items and in respect of which the first defendant [Lehloenya] awarded the contract, were to the knowledge of the first defendant far in excess of the maximum prices regulated [by treasury],” the SIU papers read.
Lehloenya, however argued, she was acting on Makhura’s instructions, as head of the provincial government, who
circumvented a treasury note dated April 2020 that called for emergency Covid-19 procurement to be centralised at national, not provincial, government level.
Lehloenya contended in her papers that the issuance of Makhura’s March 2020 circular was “an abuse of office” because it was issued “with reckless indifference”.
Speaking on Lehloenya’s behalf, advocate Sunday Ogunronbi said Makhura’s “recklessness” should cause “personal liability” against the premier and not Lehloenya.
“If it [the circular] is unlawful, the premier is the direct cause of the chaos in the province … An abuse of office invokes personal liability,” Ogunronbi argued.
But Ngwako Maenetje, who represented Makhura and the Gauteng government, rejected Lehloenya’s contention, saying the SIU had brought a claim against the former chief financial officer, whose alleged unlawful conduct caused the state massive losses.
“If you intentionally [and] unlawfully cause loss, the state must act against you. It [the SIU’s civil action] is a claim directed at her to pay money,” Maenetje emphasised.
“There is no joiner of necessity here, and the court should not worry about it.”
Judge Lebogang Modiba, who said this was “a huge matter”, reserved judgment in Lehloenya’s application.