AGE OF ACCOUNTABILITY
Five companies launch bid to wriggle off Digital Vibes hook
Judgment has been reserved in an application for leave to appeal against a Special Tribunal ruling that saw five companies being joined to Special Investigating Unit efforts to recover money from the Digital Vibes scandal.
On 13 April, the Special Tribunal, presided over by Judge Lebogang Modibe, gave the Special Investigating Unit (SIU) the go-ahead to join five additional respondents in its ongoing bid to recover allegedly corrupt proceeds stemming from the Department of Health’s R150-million Digital Vibes contract in 2020.
The companies are All Out Trading, Tusokuhle Farming, Cedar Falls Properties, Mateta Projects and Sirela Trading. Cedar Falls Properties had Sithokozile Mkhize, the ex-health minister Zweli Mkhize’s wife, listed as its sole director. Tusokuhle Farming was linked to Dedani Mkhize — the couple’s son.
The companies have now applied for leave to appeal against the Tribunal’s ruling.
The Tribunal’s judgment paved the way for the recovery of varying amounts: R1,090,000 from All Out Trading, R1,255,000 from Tusokuhle, R650,098 from Sithokozile Mkhize, R1,888,727 from Cedar Falls Properties and R586,272 from Sirela Trading.
The Special Tribunal further ruled that the SIU could move to recover some R5-million rand from Mkhize’s daughter-in-law and his son.
In the review application, the SIU seeks to hold Tahera Mather, Naadhira Mitha, Radha Harriram and former health minister Mkhize liable for the repayment of about R150-million that the National Department of Health paid to Digital Vibes.
The Tribunal also found that Mather, Mitha and their families and companies associated with them were paid for services when no services had in fact been rendered.
The SIU unearthed a further flow of funds from Mateta Projects to various members of the Mkhize family and companies associated with them.
Mateta Projects received R10.6-million from Digital Vibes.
Advocate Ian Currie, senior counsel for the SIU, said: “This claim is the reason why the SIU sought to join them as necessary respondents. You can’t claim money from someone in an actual application if you don’t join them. You can’t obtain and enforce the order that they must pay the money unless you first join them.
“The consequence of the Tribunal order is that they now join others who are in a similar position, and from which the SIU is also claiming payments jointly in what I would call the main perpetrators of the fraud,” Currie said.
Currie also told the Tribunal it is the SIU’s case that Digital Vibes’ contracts and the payments made by them were procured by way of fraud.
In its heads of arguments, the SIU says the respondents claim that Mduduzi Mthethwa’s payment to the SIU of about R11.5-million covers the amounts the SIU seeks to recover from them.
“This issue, and the questions of the purpose and source of the money paid by Mthethwa and whether the payment falls to be forfeited to the State, can only be determined at the conclusion of the main application.
“The joined respondents therefore have no right to retain the monies or benefits which are the proceeds of unlawful transactions unless they can show they were not unjustifiably enriched thereby, including that the basis of payments from Mthethwa and/or [Mthethwa’s company] Mateta were legitimate,” the SIU heads of arguments read.
Court documents showed, on Mthethwa’s version, that the only service Mthethwa rendered — for which he indirectly received about R25.6-million from Digital Vibes — was “checking” printed advertising material.
“Mthethwa could not corroborate the services allegedly rendered, least of all their fair value. As the SIU have submitted throughout the case, his evidence is uncredible,” the papers read.
Hence, the SIU submitted that the applications for leave to appeal the joinder decision of 13 April should be dismissed with costs.
The arguments raised by All Out Trading, Tusokhule Farming, Azwakele Trading and Projects, Sithokozile Khaliphile Mkhize and Cedar Falls Properties 34 is that a strong prospect exists that a court of appeal will set aside or correct this order and leave to appeal should accordingly be granted.
Reasons for their appeal contained in the heads of arguments are;
- It is respectfully submitted that Judge Modiba committed a series of material misdirections in facts and in law which were compounded by her failure to have any regard to the limited powers of the SIU to claim compensation and the limited powers of this tribunal to award compensation.
- There is no allegation of malfeasance against Cedar Falls.
- A further material misdirection is that the SIU and the honourable judge are using these proceedings to attribute some form of personal accountability or liability to the All Out Trading, Tusokhule Farming, Azwakele Trading and Projects, Sithokozile Mkhize and Cedar Falls Properties 34 for being unjustifiably enriched.
In heads of argument, advocate WAJ Nicolson for All Out Trading and Sithokozile Mkhize said Judge Modiba, in her judgment, mentioned that according to the SIU, the Mateta projects made the repayments to avoid further inquiry into the flow of funds to the family of former health minister Mkhize and the companies associated with them.
“It is respectfully submitted that it is not within the powers or function of this tribunal to take action against Mateta or the proposed respondents for disguising the flow of money, because that is a domain for a different court.”
Counsel for the applicants asked that leave to appeal the Tribunal’s judgment be granted. Judgment has been reserved. DM
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