OPINION: Response to Stephen Grootes: 5 ways to miseducate the public

As a graduate of law, the recent article by Stephen Grootes titled ‘Bandile Masuku and Zweli Mkhize: Two sides of the same coin?’ published in the Daily Maverick, caught my attention.

According to Grootes, an ‘application dismissed’ means an ‘application lost’. He relied solely on a recent media statement by the Special Investigating Unit (SIU) to reach this miseducated view.

The culture of relying on soundbites is destroying journalism and has become a staple diet that is fed to our young people and society at large. It must be stopped.

Grootes miseducates the public and this is why:

Miseducation number 1 - The distinction between dismissal of the review application and exoneration

Firstly, Grootes’ argument creates the impression that Dr Bandile Masuku faced a criminal trial in the Gauteng North High Court. Of course, Grootes does not say this, but his bias and suspicion of Masuku do say it. Before dealing with the distinction between ‘dismissal’ of the review application and ‘exoneration’, I will explain the difference between a review application on the one hand, and criminal proceedings or prosecution on the other.

A review application is often instituted in a court of law to review an administrative action by an organ of state or authority. The purpose is to set aside decisions, findings, or actions etc, that are unfair based on procedural or substantive grounds, or both.

In this case, the two SIU reports submitted to Gauteng Premier David Makura in 2020 were taken for review. The issues of dispute in court were about the SIU reports, and nothing else. So, when one analyses the case, the point of departure is the SIU reports.

Criminal proceedings or prosecution arises when one person or more are accused and charged for crimes or corruption in terms of the Criminal Procedure Act. The application of Masuku had nothing to do with crime and neither was it a criminal prosecution.

Like all review applications, he sought to persuade the court to review and set aside the SIU reports because they dented his integrity as they were baseless, invalid, and devoid of fact, he argued in court.

What is the distinction between dismissal and exoneration?

The case was dismissed with costs, yes. But Masuku got all the relief he sought except for setting aside those SIU reports. However, others can argue that by formally reducing the adverse reports of the SIU into mere opinions, the court has effectively set the SIU reports aside. The court dismissed the case because it was of the view that the SIU is entitled to ‘form opinions’ about the people they investigate.

The court went on to say that it is not enough for the SIU to form opinions, but that when furnishing a report, there is an express obligation on the SIU… that the material must be ordered and rendered coherent to substantiate the opinion on what has been discovered or not discovered [62]. On the weight of SIU opinions, the court said “the Premier was, therefore, not instructed to do anything… The Premier had no obligation in law to give that opinion any weight…[63].”

In other words, the opinion must be based on what has been discovered, not what is imagined. Importantly, the court also said, “the function of the SIU is to investigate matters, not to make determination about matters…the function of the SIU is distinct from other statutory entities such as the Public Protector and of Commissions of Enquiry… The SIU’s reports and recommendations bind no one, and like the Competition Commission, which must lay its views before the Competition Tribunal, the SIU must lay its views before the Special Tribunal or a Court [par16].”

This means that from 12 April 2021, the SIU reports impose no legal obligation on executive authorities to act. If the SIU has uncovered incriminating information against someone, they must submit incriminating evidence to the Special Tribunal or the Hawks and the NPA. In this case, the premier acted on the report by relieving Masuku of his duties. This is a crucial court finding for our democracy and governance system and it upholds the principle of the rule of law and separation of powers. It is a ruling that protects the SIU from dabbling into politics. It confines the SIU’s role and powers to only criminal investigations, as it should.

According to Masuku, the SIU does not rely on facts nor evidence to gain credibility on this case, but the overwhelming negative public mood against corruption.

I am one of those who has written and participated in interviews about corruption and the dire need for the revival of revolutionary morality in our politics. It is therefore easy to appreciate that in forming their opinions without facts and evidence, the SIU was not oblivious to the eventuality that their opinions will make it to the public domain and to the ears of others like me who have taken a position against corruption, thus compromising the image of Masuku. To this end, I think the former MEC was therefore justifiably aggrieved.

I thought a journalist of Grootes’ calibre would understand the multiple implications of this judgment not only for Masuku, but for the powers and functions of the SIU, as well as the important matter of public accountability.

What does this mean for accountability going forward? Does it not worry Grootes that the SIU – which wields enormous public power – can form adverse opinions against citizens without evidence or facts?

Miseducation number 2 – The SIU never accused Dr Masuku of corruption

Secondly, the SIU said to the premier on 1 October 2021 that it “…found that the MEC was actively involved in the decision to, and instructed the Gauteng Department of Health to procure sufficient goods and services for all state institutions within the Gauteng Province…the MEC’s support of this proposal may have been for nefarious purposes (e.g. to ensure control over procurement processes, to exploit the poor SCM processes and lack of capacity of the GDoH, and to potentially benefit himself, his wife or their friends, etc)”.

That is a direct corruption accusation by the SIU. No reasonable person can reach a different conclusion. The court exonerated Masuku based on the information before it. In this regard, the court said, “the posing of an unanswered question about why Dr Masuku supported a decision of the executive council to centralise procurement in the GDoH and speculating that it might have been for nefarious purpose was unsubstantiated upon a holistic appreciation of the information gathered [par53].” In fact, the court was harsh because it said the SIU uses ‘speculation’ to do its work and as a result, damages the reputation of the person concerned.

The court went further to say, “the text of the report [of the SIU], as a whole, was substantially padded…Some linkages between the MEC’s role and the statutory and regulatory provisions are strained, but really do not go beyond hyperbole [par 53].” In other words, the SIU failed in what seems like a bid to impose powers and functions that are not given by the Public Finance Management Act (PFMA) to executive authorities. Furthermore, the court admitted that the SIU has dented the image of Masuku when it said, “in the circumstances experienced by Dr Masuku, whose grievance is a shattered reputation, perhaps it could sensibly be asked whether he should be left to exercise a private law remedy for defamation… In Dr Masuku’s case, the SIU took no steps against him, yet accused him of dereliction of duty [par29].” So, although the court dismissed the case, it effectively exonerated Masuku.

Miseducation number 3 - The famous e-mail ‘making a mountain out of molehill’

Thirdly, the conclusion by the court that had Masuku opened the e-mail, he would have ‘been shocked’ to learn of Royal Bhaca in the list of suppliers assumes that Masuku would have known what Royal Bhaca is and to whom it belongs by 1 April 2020, the date when the e-mail was sent. In his publicly available affidavit, Masuku submitted documentary evidence that proves that he did know about the e-mail, and that the e-mail came as a result of a request from the Motsepe Foundation which wanted to donate PPE. The evidence paints a clear picture of the genesis, route, and purpose of the e-mail and the SIU could not refute this piece of evidence.

It is unfortunate that the court holds a view that failure to open an email is dereliction of duty, negligence, or unprofessional conduct. It does this without considering the context and the referral nature of the email which required no approval or signature by an executive authority. Many executives in the private and public sectors must be wary of this conclusion because it means this is now a dismissible offence. Besides, the plain truth is that there is no senior executive or politician anywhere in the world that reads all their emails daily, without fail.

Grootes’ bias is probably based on the generally held assumption that government is corrupt, and so are all ANC politicians. His suspicions notwithstanding, I doubt that Grootes believes that failure to open an e-mail amounts to dereliction of duty or incompetence. The conclusion of the court on the e-mail is, with due respect, erroneous but, that is now water under the bridge.

Miseducation number 4 – Misrepresenting facts is not cool, even small facts

Fourthly, a quick reading of Masuku’s affidavit has him admitting to being friends with Khusela Diko and not the late King. I doubt that Masuku would lie about this fact because either way, his admitted association with Diko is treated with the same suspicion by a prying media and SIU. It therefore becomes immaterial and strange to suggest that he may be lying about an inescapable matter of this nature.

This misrepresentation of facts by Grootes is important because it means that if journalists cannot verify simple and small facts, it leaves doubt in the public mind whether they can be trusted with big and complex facts. It could mean that the media may mislead the public on serious matters, and we end up with an increasingly ignorant society – an antithesis of the role of the media. In part, the role of the media in a constitutional order is to meaningfully advance democracy and freedom based on truth and facts.

Miseducation number 5 – The court found that Masuku did not exercise executive oversight

Finally, the court found that “Dr Masuku was plainly not totally unresponsive to the news of irregularities; he did endorse the internal audit on 7 April 2020. What he is criticized for is that this decision was, in the context, weak and he should have been properly alert and taken direct action himself…[par55].” Clearly, the court did not find that Masuku did not act against allegations of PPE corruption. And as the public record shows, he became the first health MEC in the country to do so.

I wonder why Grootes does not ask the question: why does the court say an executive authority can ‘take direct action’ in respect to administrative matters when the PFMA strictly prohibits such an authority to do so? What does this precedent mean for our public governance system? Is it not an overreach? Does it not mean that real rogue politicians can now interfere improperly in the administration for ‘nefarious purposes’ – to use the phrase of the SIU – and justify it on the grounds that the judgment says so? Is Grootes comfortable with the fact that an executive authority can now ‘oversee operations’ [par55] of a department by law?

Remember, the courts do not make the law in the literal sense, they apply and interpret it. Which provision of the law empowers executive authorities to instruct administrators to cancel tenders or contracts? If they can do that, are they also allowed to instruct that tenders be issued?

In simple terms, the court has exonerated Masuku on merit. It does not matter that the court dismissed the application on the grounds that the SIU is entitled to its opinion – an opinion of which the court said the premier is not obliged to obey and that the opinion lacks substantiation.

Kgotso Maja is an LLB graduate and an activist based in Gauteng. He writes in personal capacity.

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