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Former health minister Zweli Mkhize has asked the high court to review and set aside the Special Investigating Unit (SIU) report into Digital Vibes.
In papers filed at the Pretoria High Court on Friday, which City Press has seen, Mkhize cited the SIU and president Cyril Ramaphosa as the first and second respondents, respectively.
City Press understands that a hearing date has yet to be set, but respondents have been given 15 days to oppose the application.
READ: May Mkhize implicated in Digital Vibes scandal to the tune of R1.8 million
Mkhize is seeking an order to declare the conduct of the SIU and a referral letter sent to Ramaphosa – which made adverse findings, conclusions and recommendations against him in the contract awarded by the department of health to Digital Vibes – as unlawful and unconstitutional.
On Tuesday, SIU spokesperson Kaizer Kganyago said they would defend the report and oppose the application.
READ: Zweli Mkhize’s conduct related to Digital Vibes was ‘at best improper’ and ‘at worst unlawful’
As widely reported, Mkhize said in his founding affidavit that the SIU reached conclusions that he “may” have acted in an improper and criminal manner by supposedly inter alia:
- Interfering in the affairs of the health department;
- Causing irregular expenditure;
- Acting with a conflict of interest;
- Negligently approving budgets; and
- Failing to comply with “my obligations in terms of my performance contract, as a minister, with Ramaphosa”.
Based on these conclusions, Mkhize said, the SIU recommended that Ramaphosa take “executive action” against him.
“I did so because I considered that the report placed the president in an impossible position, given that I hold office at his pleasure and that the report was delivered at a critical time. It was clearly necessary for a particularly important department to have stable leadership during the pandemic. I did so too in order to clear my name,” Mkhize’s affidavit reads.
‘Irregularities’ in SIU probe
Mkhize said conclusions and findings reached by the SIU were tainted by stark irregularities in the manner in which it conducted its investigation and in its approach to the evidence it gathered.
“These irregularities are both procedural and substantive in nature,” his affidavit reads.
READ: Digital Vibes probe: Mkhize dodges Parliament
In essence, Mkhize said, the SIU approached the matter with a predetermined outcome concerning his supposed involvement in the Digital Vibes contract.
“In doing so, it failed to maintain an open and enquiring mind, as the law requires of it. In reaching its conclusions."
He said there were also clear breaches of basic fairness.
“While, for instance, I provided the SIU with a bundle of documents plus – without being required to do so – a detailed witness statement in advance of my questioning, I was given no notice of even the gist of fundamental matters on which I was questioned. Documents in the possession of the SIU were simply withheld so that I could be ambushed.”
“Also, by way of example, key findings eventually reached by the SIU in its referral to the president, were markedly different from those that were put to me during its interrogation.”
READ: SIU: Investigation into Mkhize's Digital Vibes connection to be completed by month-end
“The SIU also failed to disclose allegations made against me by the former director-general of the health department, but relied heavily on those allegations in coming to adverse findings against me. The SIU gave me no opportunity to respond to those allegations which form the main plank of its findings against me. The allegations are indeed demonstrably false, as other evidence corroborates, and appear to have been driven by the previous difficult relationship between myself and the former director-general,” the affidavit reads.
Mkhize said had his submissions and evidence been taken into account by the SIU, it would have come to a different conclusion regarding his alleged involvement in the appointment of Digital Vibes.
“I wish to make it clear that my challenge to the report is not restricted to procedural grounds, as important as these are. Not only was the report clearly vitiated by fundamental and multiple procedural lapses, it is, on several substantive grounds, unfounded and irregular too.”
“The SIU’s approach to analysing the evidence is furthermore tainted by a basic error of law. It admitted, as I shall show, that it lacked a scintilla of direct evidence either of my own benefit or that I had engineered the benefits undoubtedly received by others.”
‘Immense personal consequences’
Mkhize said the findings and conclusions of the SIU had immense personal consequences.
He wrote:
"My rights of reputation, personal and professional, have been undermined; my employment as a public servant ended; my political career itself has been jeopardised."
In light of the serious lapses of natural justice, Mkhize said, the SIU’s failure to approach its investigation with an open mind and its fundamental error of law, the findings, conclusions and recommendations against him made by the SIU must be set aside, and so should its referral to Ramaphosa.
READ: Mkhize's resignation letter: 'I am resigning to bring stability to health department'
In lodging the application, the former minister said he was not suggesting that the appointment of Digital Vibes was proper and lawful.
“Indeed, as the record will show, I reacted promptly to the Auditor-General’s findings even before there were any media reports or SIU investigation, and insisted on an independent external investigation. It appears from evidence gathered by the SIU that Digital Vibes’ appointment was indeed tainted by irregularities. I emphasise that I was not involved in such irregularity. The findings and inferences made seeking to relate me to it are what is challenged in this application,” the affidavit reads.
‘No personal gain’
Mkhize said he personally played no role, directly or indirectly, in the procurement process of the department resulting in the award of the contract to Digital Vibes.
He said he wished to emphasise that, save for professional interactions in the course of the implementation of the communication activities for the department, he had no personal engagements with Digital Vibes or any person associated with it.
“Nor did the SIU even suggest the converse in its questioning of me. I also received no personal benefit, directly or indirectly, from Digital Vibes or persons associated with it ... This too the SIU also conceded in questioning me.”
Not my ‘associates’
Mkhize said Tahera Mather and Naadhira Mitha, the alleged masterminds of the transaction, were not his friends or close associates.
He said they were comrades or colleagues whom he had worked with in his official and political capacities, but not “close associates of mine or persons with whom I had or have any personal relationship”. “Quite scurrilously, the SIU initially suggested to me in my questioning, on the strength of a group photo of me including Mather, that her head was rather close to mine, clearly inferring a personal intimacy. I took exception and the SIU then overtly withdrew any such insinuation. I deal later with the implications of that abandonment – the SIU, conceding also that I have derived not a cent of benefit from Mather or Digital Vibes, has been reduced to a different hypothesis – since it admits no direct evidence as an ‘inference’ that I contrived the payment of a benefit to another. This to a son from whom I am effectively estranged.”
READ: Digital Vibes: SIU report on Mkhize’s involvement in R150m tender now with Ramaphosa
Mkhize said he had not placed any pressure on officials to appoint any party as a contractor, as was allegedly suggested by former director-general Precious Matsoso to the SIU.
He said that his wife, Dr May Mkhize, also denied categorically having ever personally benefitted or received money from Digital Vibes or any of its associates.
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