Disciplinary inquiry clears Health Director-General Sandile Buthelezi of all charges, lifts suspension
Suspended Health DG Sandile Buthelezi returned to work on Monday after his suspension was lifted. This followed a judgment handed down last week concluding his disciplinary inquiry. In it, retired judge Cynthia Pretorius declared: ‘There is no doubt that some of the officials in the NDOH and some politicians were guilty of the charges, but I cannot find that the employee is guilty. He was unfortunately placed in an untenable position and did his utmost to try and rectify the wrongdoing of his predecessor and other parties.’
On Sunday, 28 November, in a letter he received from Minister of International Relations and Cooperation Naledi Pandor, Dr Sandile Buthelezi, the suspended Director-General of the Health Department, learnt that he had been found not guilty on all five charges against him and his “precautionary suspension has been lifted with immediate effect”.
Buthelezi had been put on suspension in late August 2021 after the SIU recommended in its report to President Cyril Ramaphosa that disciplinary action be taken against him concerning his alleged role in the Digital Vibes scandal.
Because of his seniority, the disciplinary hearing was delegated to the Department of International Relations and Cooperation and a hearing took place on 25 and 26 October, with retired judge Cynthia Pretorius as chairperson.
Buthelezi faced five charges:
- Gross dereliction of duty (for failing to stop monthly payments to Digital Vibes after he became DG in June 2020);
- Gross negligence for issuing an “irregular instruction” to the Chief Finance Officer centralising all the communications contracts, including that with Digital Vibes, in his office;
- Gross financial misconduct for failing to stop payments of more than R60-million, in contravention of the PFMA;
- Acts of gross misconduct (for approving a budget for Digital Vibes of R85-million for June to December 2020; and
- Expenditure emanating from extending the contract to March 2021.
However, as noted by Pretorius, “all the charges are intertwined and interrelated”.
Buthelezi, who testified on his own behalf in the hearing, pleaded not guilty to all the charges.
Buthelezi’s main defence was that, upon commencing his position as the DG, he had in fact acted properly. He pointed out that after first receiving internal concerns about the Digital Vibes contract from the CFO, Ian van der Merwe, and from the Chief Director: Supply Chain Management, Dikeledi Tshabalala, he had initiated an independent forensic investigation by Ngubane Inc into the contract; later, after the SIU commenced its investigation in March 2021, he said that he cooperated fully with its investigation.
Buthelezi rejected the idea that he could “micro-manage each and every aspect of every contract whilst having so many responsibilities, especially during the Covid-19 period”.
However, Buthelezi argued that he could not stop payments or terminate the contract without sufficient evidence any way and that, before the findings of the Ngubane investigation, all he had to go on was a warning by the Auditor-General made in December 2020 that Digital Vibes “may possibly be overcharging the department”. At that point, the AG had also recommended an investigation into Digital Vibes “as an emergency supplier for Covid-19”.
Commenting on an argument which judge Pretorius said “could not be faulted”, she said: “He could not suspend the contract without any proof there was something untoward about the contract, as it would have constituted a breach of contract, possibly resulting in litigation.”
Buthelezi said once he received the preliminary findings of the forensic audit in March 2021, on the advice of the auditors he acted swiftly to suspend the contract. He said that Ngubane Inc’s report, when made public in May 2021, did not find him implicated in the scam: it named instead four senior officials against whom disciplinary hearings are ongoing (Maverick Citizen is aware of their names).
After considering the evidence and being mildly critical of the SIU for not adequately explaining why Buthelezi had been charged, Pretorius concluded in a manner that would have brought relief to Buthelezi, but certainly not to former Health Minister Zweli Mkhize or others facing internal disciplinary inquiries (the outcomes of which we do not yet know).
In paragraph 71 of her judgment she writes:
“It is clear from the evidence that the Minister and the NDOH had interfered and had signed the submission dated 16 January 2020 as a political office bearer and it was not signed by the administrative head of the NDOH. There can be no doubt that this contract between the NDOH and Digital Vibes constituted an irregularity, but I cannot find [Dr Buthelezi] played any part in contravening the PFMA or wilfully and negligently mismanaged the finances of the state. There is no evidence [Buthelezi] was part of State Capture.
“There is no doubt that some of the officials in the NDOH and some politicians were guilty of the charges, but I cannot find that the employee is guilty. He was unfortunately placed in an untenable position and did his utmost to try to rectify the wrongdoing of his predecessor and other parties.”
On Monday, Buthelezi’s lawyers, Richard Wands and Rowan Bauer of HJW attorneys, had this to say: “We believe that the judgment, handed down by retired judge Cynthia Pretorius, is unequivocally clear and demonstrates that Dr Buthelezi was not involved in the saga, but that he in fact took all reasonable measures to halt any wasteful and unnecessary expenditure in the department and that his actions were beyond reproach.”
Buthelezi’s return to office coincides with the emergence of the Omicron variant of Covid-19. Dr Nicholas Crisp, who has been acting DG, will presumably go back to leading the vaccination campaign. DM/MC
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