Staff Reporter.
David Makhura. Picture: Supplied.
The lawyer representing Gauteng Premier David Makhura and the provincial government – in the third party notice challenging the Special Investigating Unit’s (SIU) civil recovery proceedings – says the premier cannot be held personally liable in the personal protective equipment (PPE) saga.
Former Gauteng health department chief financial officer Kabelo Lehloenya, who brought the third party notice, wants Makhura and other public officials to be joined in the civil recovery proceedings before the Special Tribunal.
Should she be found to be liable, she also wants the premier and the officials to contribute to any amount she is found liable for when she approved PPE contracts.
The officials cited include the Gauteng health department’s chief operating officer, Arnold Malotana; its chief director, Thandiwe Lorraine Pino; and head of department, Mkhululi Lukhele; as well as PPE supplier Ledla Structural Development.
Lehloenya is seeking an order to join these parties to the proceedings as joint wrongdoers.
On Thursday, advocate Ngwako Maenetje, for Makhura said there was no legal basis on which the premier or the provincial government should contribute.
He also said Makhura could not be held personally liable.
Maenetja also said if the SIU succeeded in the trial, then Lehloenya would lose her state protection.
“She has no claim against the government once the SIU succeeds, because she forfeits state protection,” Maenetje said.
Advocate Daniel Berger, for Lukhele argued that the SIU’s claim against Lehloenya and Lukhele was based on contract.
“The plaintiff (SIU) seeks the payment of contractual damages from first (Lehloenya) and second defendants (Lukhelo). There is no claim in delict.”
He said Lehloenya made allegations that Lukhele approved of payments to Ledla “when he was aware or ought to have been aware the payments were irregular or unlawful”.
She also said Lukhele “acted negligently and unlawful” and that he was under the duty to “stop the payments to Ledla”.
Berger added that there was no contractual provision that Lehloenya relied upon for the relief that she seeks against Lukhele.
“So there is no basis for her claim for a contribution…”
There is no basis to claim state protection for the Premier to claim that like a civil servant, Adc Ogunronbi argues.
He says the Premier displayed recklessness in the awarding of the contract. He had knowledge of invalidity and never acted on the reports of wrongdoing.— Special Tribunal South Africa (@TribunalSpecial) August 19, 2021
Meanwhile, advocate Sunday Ogunronbi, for Lehloenya told the tribunal that the premier had a case to answer to and should be held liable in his personal capacity.
He argued that Makhura “displayed recklessness” in the awarding of the contract, and contributed to the “chaos that happened in the province”.
He added that the circular calling for the centralised system of PPE was way above his client.