The Department of Public Enterprises has gone to court to review and set aside a settlement agreement it concluded with Kim Davids, former private secretary to then Cabinet minister, Lynne Brown.
It wants the settlement deal to be declared invalid nearly three years after Davids left the civil service in December 2017.
She was paid out, ostensibly to avoid litigation, after Brown had asked her to resign in the wake of damning revelations that she had stayed at the Oberoi Hotel in Dubai in 2015, and that her stay there had been arranged by Gupta family kingpin, Salim Essa.
The #Guptaleaks showed how a R32,000 hotel bill for “Kim Davids” had been sent for approval to Tony Gupta, and that a limousine had been booked to take her to the Gupta family’s L35 mansion during that festive season trip.
Now, in an application filed by Brown’s successor, Pravin Gordhan, the department seeks a review of the decisions that led to the R700,000 settlement agreement with her. It hopes to recover just over R435,000, the after-tax amount paid to Davids.
While the court papers filed at the High Court in Cape Town also cite Brown as a respondent in the matter, no relief appears to be sought against her. Brown declined to comment.
The review application is being brought in terms of the Promotion of Administration of Justice Act (Paja), an affidavit by current DG, Kgathatso Tlhakudi states.
The department’s case is centred around the findings of a 2018 Public Service Commission investigation and a 2017 legal opinion that advised against the settlement.
That legal opinion, attached to the court papers, cautioned that there had been a prima facie case for Davids to answer; that the department would need to explain why the Dubai trip was not investigated to determine if disciplinary charges were warranted; and that it was an inescapable conclusion that the payment of a settlement to Davids, if done, would be considered unlawful.
Thlakudi said that while Brown did not sign it, it was “clearly apparent that she had played a pivotal role in the negotiations” as she wanted Davids to resign without any cause whatsoever.
Daily Maverick revealed last year how, in a move seemingly designed to circumvent potential disciplinary action, Brown had asked Davids to resign in order to protect the integrity of her office.
While Davids did that, even thanking Brown for having contributed to her professional development, she threatened weeks later to lodge a claim for constructive dismissal.
It was this threat that triggered the controversial settlement that was ultimately signed by former DG Richard Seleke.
Asked for comment about this court case, Seleke told Daily Maverick that he only had limited information at his disposal, but believed the settlement was procedurally and administratively above board.
Davids was hired on a 12-month contract in 2014 when she joined the ministry as Brown’s private secretary at a salary of just over R800,000 a year. Such posts are usually tied to the minister’s term of office. Roughly six months after her Dubai trip, she became a full-time employee in the department in order to give her greater job security, court papers show.
First, a legal hurdle
Public Enterprises will have to convince the court that it has sound reasons for having delayed the filing of this application.
Court papers state this ought to have been done within 180 days of the date of the Davids settlement payout (by May 2018).
While it had carried out various investigations into the settlement, it was only when Daily Maverick reported about it in November 2019 that officials began investigating options to recoup the money from her.
Thlakudi’s affidavit states that one of the reasons for the late filing of the application is that Brown only vacated the ministerial post on 26 February 2018, while Seleke, who signed the settlement, left a month later on 25 March.
Gordhan, when he took over from Brown, asked the Public Service Commission to assess the regularity of the deal in July that year.
Thlakudi previously told Daily Maverick that although the PSC released its report to the department in late 2018, the case had somehow slipped through the cracks.
Court papers state this was also due to the fact that the department did not have a permanent DG until July 2020, when Thlakudi was confirmed in the position.
Thlakudi said it was in the interest of justice that the court permits the matter to be heard “because of the apparent collusion among very senior officials of the department”.
He added: “The interest of justice demands that high ranking officials be held accountable and not escape the consequences of their deeds simply because of the passage of time in addressing malfeasance in the public service.” DM
There is an Egyptian god for endlessness or infinity. His name translates to "Huh".