The gloves are off in the fight between the Special Investigating Unit (SIU) and former health minister Zweli Mkhize, who has filed papers punching holes in the unit’s investigation into him.
The SIU has added Mkhize’s wife, son and daughter-in-law as respondents in its new affidavits related to the Digital Vibes scandal.
Mkhize has applied to the Pretoria High Court to review and set aside the SIU’s damning findings that the R150 million Digital Vibes contract was a money laundering scheme designed to siphon funds to his family, while also shielding them from accountability.
His supplementary affidavit is a response to the documents the SIU submitted in the court record, which explains the basis for the findings contained in the Digital Vibes investigative report.
In his affidavit, Mkhize stated: “One of the critical documents which is missing from the record is an alleged Cabinet decision which was a central aspect of the SIU’s referral and report in making findings against me.”
He said the key document did not form part of the court record that the SIU had submitted “and when my legal representatives sought it under [court rules], the SIU confirmed that such document does not exist”.
He added:That there is no resolution and has never been a Cabinet resolution in the SIU’s possession assigning the National Health Insurance [NHI] communication strategy to the Government Communication and Information System [GCIS] is further evidence of the SIU’s predetermined outcome in investigating the contract.
Mkhize said the documents disclosed by the SIU demonstrated how, in making adverse findings against him, the unit had relied solely on the evidence of Precious Matsoso, the former director-general of the health department.
He said Matsoso had played a significant role in the appointment of Digital Vibes by the department, and “had every reason to attempt to pin the blame on me, rather than accept her own role in the appointment of Digital Vibes”.
However, he added: “The SIU had this evidence in its possession [and] chose to ignore it.
The SIU had contended that Mkhize, as the health minister, “allowed Digital Vibes to be appointed by the [national department of health] in respect of the NHI media campaign, contrary to the Cabinet memorandum”.
Mkhize said: “The SIU either does not understand or deliberately ignores the difference between a Cabinet memorandum and a resolution.”
The relevant department would prepare a memorandum for Cabinet consideration and a resolution would then be taken by Cabinet.
Cabinet would either accept or reject the recommendations in the memorandum, which were not binding. The summary by officials helped the Cabinet decide and “it is startling that it should be presented here as the decision itself”, stated Mkhize.
He said that he had prepared the memorandum which the SIU claimed he had ignored, for consideration by Cabinet.
“Cabinet did not resolve that the GCIS develop the NHI communication strategy … Instead, the responsibility for developing the strategy was solely given to the minister of health.”
However, said Mkhize, the SIU remained steadfast in its reliance on this alleged Cabinet resolution.
He said the SIU had admitted that it was “unable to obtain a copy” of the purported resolution because it was classified:I submit that the more plausible inference is that the SIU could not obtain a copy of it because, as I have maintained from the outset, there is simply no resolution in such terms. If the SIU never had the alleged resolution in its possession, then how could it have made adverse findings against me based on that resolution? How could the SIU know what the contents of an alleged resolution are if it (on its own version) has not had sight of it and its contents?
The SIU’s conclusion that he had ignored a Cabinet decision was not rational, given the unit’s inability to obtain a copy of the resolution due to apparent confidentiality, he added.
He said that on June 16 last year, he had declassified the said Cabinet resolution: “The SIU ignored the evidence I tendered in its investigation, thus breaching my rights to natural justice and acting in a procedurally irrational manner.”
Mkhize said he had had a difficult relationship with Matsoso because of the slow NHI roll-out until she resigned on October 21. He said it was Matsoso who had applied to Treasury for Digital Vibes to be appointed through deviation. Treasury had declined. He said Tahera Mather of Digital Vibes had already participated in meetings, apparently as a representative of the department, at the invitation of Matsoso.
“It was Matsoso who conducted this alleged appointment … As the accounting officer, Matsoso was the only person who had the power to authorise which officials or consultants attended official meetings of government as representatives of the department.”
The SIU had not addressed this evidence and no explanation had been provided as to why Matsoso’s role had not been questioned prior to Digital Vibes’ appointment.
Mkhize then stated:Moreover, Matsoso had a clear motive and interest in implicating me, rather than accepting her role in the appointment of Digital Vibes. But the SIU did not take this into account and accepted her evidence blindly.
The SIU had ignored this evidence, “instead, it adopted a predetermined outcome, namely that I was the cause of Digital Vibes’ appointment. Its failure to approach its investigation with an open mind vitiates its findings, recommendations and conclusions.”
In another development, Mather has brought in former National Prosecuting Authority boss Shaun Abrahams to join her legal defence in the impending multimillion-rand civil forfeiture proceedings before the SIU tribunal.
Abrahams refused to go into details regarding his defence strategy, only saying: “I implore you to wait until we’ve filed our responding affidavit.”
City Press understands that he was appointed to join the defence earlier this year after the SIU finalised its report, further implicating Mkhize’s wife May, son Dedani and daughter-in-law Sithokozile in the continuing civil proceedings.
According to the notice of joinder application by the SIU’s principal forensic investigator, Rajendra Chunilall, the unit has obtained evidence showing that the respondents were all recipients of monies deriving from the impugned transactions between the national department of health and Digital Vibes. This makes the monies the proceeds of unlawful activities that they have no right to retain.
“The SIU consequently seeks to recover the monies from the respondents. It is thus submitted that the respondents are interested parties and necessary parties in the main application, and an order is sought joining them in the main application,” the affidavit reads.
It states that the SIU seeks to recover R300 000 paid to Dedani Mkhize by Tahera Mather. Dedani has stated that he considered the money to be a gift from her.
However, the affidavit states:[Dedani Mkhize] undertook to repay this amount if it was established that it was linked to an irregular contract with the department of health. Further, he received a car paid for by Digital Vibes. [He] admitted that the car was purchased by Mather, but said it was a gift for his very close friend and business associate, Andile Ngcobo.
According to the affidavit, the SIU obtained evidence that Dedani received amounts of R1.75 million, channelled through the bank account of JD Communications CC, and R1.4 million channelled through the personal bank account of Jacob Desai.
Desai later converted these payments to cash, which was given to an intermediary, Yusuf Ganie, in boxes or plastic packets and thereafter handed over to Dedani.
“The SIU has established that Desai retained a final amount of R500 000, paid to him from the account of Bevels Communications. He has, through his attorneys, undertaken to repay this amount to the state,” the affidavit reads.
It continued:Amounts totalling some R8.63 million were paid by Digital Vibes, Composit Trade and Investment 02 and Mateta Projects to the immediate family members of former minister Mkhize … The inference is inescapable that these amounts were undue gratifications of the former minister to reward him for his role in facilitating the impugned transactions.
The founding affidavit shows that Zweli Mkhize promoted the appointment of Mather as a consultant to the department of health. Later, when this turned out to be not permissible, he pressed for the appointment of Digital Vibes for an NHI communication contract for which there was no budget.
According to the SIU, Mkhize approved a budget for Digital Vibes for NHI communication on January 20 2020.
The SIU also argues that the payments to Digital Vibes were fraudulently obtained.
The affidavit continues: “Digital Vibes was by no measure a legitimate service provider and it did not provide legitimate services to the national department of health. The appointment of Digital Vibes was a vehicle for the transfer of funds from the department to the controlling minds of the fraudulent scheme and to the family members of the former minister.
“Tens of millions of rands deriving from the payments made by the department were not used to perform communication services, but were instead paid to companies controlled by Mather and [Naadhira] Mitha [co-owner of Digital Vibes], to family members of Mather and to the members of the former minister’s family.”
The SIU supplementary affidavit also reveals that Mkhize’s wife and daughter-in-law should join the former minister in repaying the state. The SIU wants almost R2 million from May Mkhize. Her company, Cedar Falls Properties 34, allegedly received R1 888 727 through one of the implicated beneficiaries of the irregular contracts.