Former IDAC head concedes legal justification for Masemola PFMA charges 'does not hold water'
Advocate Andrea Johnson has conceded that the Directorate's legal reasoning for charging National Police Commissioner General Fannie Masemola under the Public Finance Management Act 'does not hold water'.
This was after a sustained challenge by Madlanga Commission Chairperson Justice Mbuyiseli Madlanga during her testimony on Wednesday.
The exchange centred on the Investigating Directorate Against Corruption's (IDAC) decision to charge Masemola with four counts of contravening the PFMA in connection with the R228 million Medicare24 Tshwane District SAPS health services tender.
The charges stem from Masemola's role as the accounting officer of the South African Police Service (SAPS).
IDAC alleges that after being alerted to irregularities in the procurement process, he failed to act, allowing further payments to be made before the contract was eventually stopped.
Defending the charges before the Commission, Johnson argued that the PFMA offences flowed from the broader corruption, commercial and financial crimes allegedly committed in the awarding of the tender.
She told the Commission that senior SAPS officials had alerted Masemola to alleged unlawful conduct surrounding the contract and urged him to intervene.
"It was brought to his attention because he is the accounting officer. Had he acted, then the perpetuation of this unlawful corruption, commercial and financial crimes would not have taken place."
Johnson stressed that IDAC is not accusing Masemola of participating in corruption.
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"We never said that he was party to the corruption, but he is being charged then for the PFMA arising out of those matters that he had become aware of and that we say he then did not stop."
Justice Madlanga, however, was unconvinced.
"That's a valiant attempt, but I do not think it takes you to a pass mark."
The Chair then challenged IDAC's interpretation of its statutory mandate, using a hypothetical example in which every other accused in the Medicare24 matter had fallen away, leaving Masemola facing only PFMA charges.
"So General Masemola then has to be charged under the PFMA all by himself. So what would the PFMA charges be additional to?... Additional to what?"
Madlanga said IDAC could not rely on the word "additional" in the legislation to justify the charges where there were no other qualifying offences against Masemola.
"The use of 'additional' is because there must first be other offences. Otherwise, additional simply does not make sense."
After failing to counter the Chair's reasoning, Johnson conceded.
"I have to agree with your reasoning."
Madlanga replied: "Thank you. I made the point I thought I needed to make."
He then delivered his final assessment of IDAC's legal argument.
"I suggest to you, or as other people would say, I put it to you that your reasoning in this regard will not hold water. It simply does not."
The Chair later clarified that the Commission was not expressing a view on whether Masemola had contravened the PFMA.
"We are not suggesting that General Masemola has no case to answer in so far as the PFMA is concerned. What we are focusing on is IDAC's mandate."
Madlanga added that whether PFMA offences had been committed was "something else altogether", but said the question before the Commission was whether prosecuting standalone PFMA offences falls within IDAC's legislated powers.
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