State goes after dishonest cash by halting pensions, and resigning won’t help

Judge Gidfonia Makhanya is president of the Special Tribunal on Corruption, Fraud and Illicit Money Flows.
Image: Alon Skuy

Luxury car purchases, dodgy scholar transport claims and inflated government contracts are among the cases being dealt with by a special team of judges, and investigators are on the hunt to claw back the money.

Wrongdoers attempting to evade disciplinary proceedings through resignations are now also stymied due to the recently established Special Tribunal on Corruption, Fraud and Illicit Money Flows.

The tribunal has so far passed two judgments which have stopped pension payouts to two former government officials suspected of wrongdoing.

The Special Investigating Unit’s (SIU’s) use of the specialist court to stop payments of pensions to suspected wrongdoers has been hailed as a step in the right direction by anti-corruption bodies Corruption Watch and the Organisation Undoing Tax Abuse (Outa).

This year, 22 other cases will be heard by the tribunal, which became fully operational in October last year.

The cases include applications to set aside irregular contracts and claims for unjustified enrichment as the SIU seeks to recover money irregularly siphoned from the state.

A case in which the tribunal passed judgment in January involves Kgosi Gustav Lekabe, who was head of the office of the state attorney in Johannesburg.

Lekabe resigned with effect from June last year, effectively putting an end to a pending disciplinary hearing against him.

He had been placed on suspension in September 2018 after allegations that he colluded with an advocate from the Johannesburg bar in a damages case against the minister of police.

Lekabe allegedly conceded the merits of an assault damages claim launched by Ayanda Kunene, and also allegedly agreed to damages amounting to R34m without receiving instructions from the police.

The police minister last year disputed the validity of Lekabe’s actions, and contended the ministry was not lawfully bound by the concessions which led to the orders.

In October last year, the high court in Johannesburg rescinded and set aside a court order granted in February 2017 which directed the minister to compensate Kunene for all proven damages perpetrated by police in August 2013. The October judgment also rescinded and set aside the order granted in March 2018 which had awarded R34m damages to Kunene. The court ordered Lekabe, in his personal capacity, to pay the costs incurred by the minister in the rescission application.

In the special tribunal, the SIU and ministers of police and justice sought an order interdicting the Government Employees Pension Fund (GEPF) and the Government Pensions Administration Agency from paying pension benefits to Lekabe, pending an action instituted by the SIU in the tribunal against Lekabe.

In the application, the SIU and the ministers sought a judgment against Lekabe for damages of between R34m and R40m allegedly owed to the ministers.

In the application for the interdict, the SIU stated it had reason to believe that, should the payment of the pension benefit be made to Lekabe, the SIU and the ministers would suffer unmitigated losses as they would have no security for judgment sought against Lekabe in the pending action, should that action go against him.

The judgment passed in January by the president of the special tribunal, judge Gidfonia Makhanya, granted the SIU and the ministers’ application and ordered Lekabe to pay the costs of the application.

In the second judgment three weeks ago, the tribunal ordered the GEPF not to pay former North West health department head Dr Thabo Lekalakala his entire pension benefit.

This was because action was to be instituted against him by the SIU.

Corruption Watch executive director David Lewis said the SIU approaching the tribunal to stop the payment of pensions was the way to go, and served as a warning to public officials who were suspected of stealing from the public purse.

Outa CEO  Wayne Duvenage said the SIU’s initiatives and mechanisms are extremely important in the fight against corruption.

“For far too long, corruption has continued without consequence. This is another mechanism to fight corruption. We need more of these, especially when it hits individuals in their pockets,” Duvenage said.

Tribunal spokesperson Selby Makgotho said a case set to be heard this term is an application by the SIU to declare as invalid a contract entered into by the correctional services department for fencing at the correctional services centres.

“The initial contract was valued at R492m but the project ballooned and about R2bn was paid by the correctional services department.”

In Gauteng, the SIU has seven cases placed before the tribunal concerning Life Esidimeni.

The case involves unjustified enrichment claims against service providers ranging from R124,000 to R2.4m.

Makgotho said there were also cases against three Eastern Cape municipalities with a cumulative R130m claimed.

In one of these cases, the SIU seeks an order against the Mbhashe local municipality to review and set aside agreements between the municipality and a fleet company in respect of vehicles purchased.

There are also eight applications in North West concerning alleged irregularities in the scholar transport system between 2010 and 2017, mainly for inflating invoices and kilometres travelled, to the detriment of the state.

The tribunal was set up at the beginning of 2019 to help the SIU in finalising civil litigation after the conclusion of investigations.

Announcing the appointment of the tribunal in February last year, President Cyril Ramaphosa said fast-tracking these matters through the tribunal will enable the SIU to recover monies or assets lost by state institutions through irregular and corrupt means.

The tribunal’s seat is at the Booysens magistrate’s court in Johannesburg but the tribunal president may schedule meetings of the tribunal at any seat of the high court or magistrate’s court to enhance access to justice.

BY ERNEST MABUZA

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