The charge; The offense of “corrupt activities” in terms of section 4 of the Prevention and Combating of Corrupt Activities Act 12 of 2004 (“the Act”).

The charge

The offense of “corrupt activities” in terms of section 4 of the Prevention and Combating of Corrupt Activities Act 12 of 2004 (“the Act”).

An article titled “How a dying woman’s bed was taken by an ANC official” appeared in the Mail & Guardian on 4 July 2014.

The article states that MEC Malakoane, with the assistance of his Head of Department David Motau and Deputy Director-General Teboho Moji, ordered that a patient be admitted to the Intensive Care Unit (“ICU”) at Dihlabeng Regional Hospital despite that the patient did not qualify for admission to the ICU and patients who did qualify for admission had been turned away the same night because the ICU was at capacity. The article indicates that the officials ordered the patient to be admitted to the ICU due to the patient’s political position and connections. The patient was admitted and several other patients who qualified for admission were turned away while he was occupying a bed. A patient who was removed from the ICU to make room for the undeserving patient died in an ordinary ward of the hospital.

The evidence

On the night of 27 June 2014, MEC Malakoane and HoD Motau entered Pekholong District Hospital in Bethlehem and instructed health officials, who were subordinate to the MEC and the HoD, to refer a patient (“Patient X”) to Dihlabeng Regional Hospital to be admitted to the Intensive Care Unit. Pekholong District Hospital does not have an ICU whereas Dihlabeng Regional Hospital does.

A doctor who informed the Mail & Guardian of this information requested anonymity for fear of being fired. Moreover, the real name of Patient X is known to the Mail & Guardian.

It is alleged that Patient X was politically connected and an office bearer of the African National Congress.

When Patient X arrived at Dihlabeng Regional Hospital, the ICU consultant on duty assessed him and found that he did not qualify for admission to the ICU because he was in the last stages of a chronic condition and was unlikely to recover. A senior doctor at Dihlabeng hospital explained “no other ICU in the country would admit a patient like that, especially over other patients we could more likely save.” The ICU was at capacity and two critical patients had been turned away that night due to space constraints. Even though a patient with a prognosis like that of Patient X is usually cared for at a primary level, Patient X was admitted to a secondary level medical ward.

The following morning, on Saturday 28 June 2014, MEC Malakoane issued an instruction to the Clinical Manager on duty at Dihlabeng hospital to admit Patient X to the ICU. Deputy Director-General for the FSDoH Mr Teboho Moji delivered this instruction on behalf of MEC Malakoane. The Clinical Manager on duty at the ICU said that it was explained to him “the MEC had promised family members the patient would go to ICU.”

Another doctor at Dihlabeng hospital explained that “the medical professionals on duty were in trouble for not sending [Patient X] straight to ICU” even though Patient X had already been admitted to a higher level of care than he should have been.

On 2 July 2014, Patient X remained in the ICU with no improvements to his condition. It is alleged that during the previous days, several critical patients deserving of admission to the ICU were turned away due to the lack of capacity. It is particularly alleged that a patient who qualified for admission to the ICU but was turned away died in an ordinary ward of the hospital on Monday 30 June 2014.

In addition to the information reported in the Mail & Guardian, the TAC has reason to believe that Patient X was a relative or associate of another senior political leader in the Free State.

The TAC also have reason to believe that members of the staff at Dihlabeng Regional Hospital and Pekholong District Hospital can confirm the facts reported in the Mail & Guardian.

The mec’s defence (two conflicting reports)

Version 1

In an interview with eNCA aired at 12h00 on 11 July 2014, MEC Malakoane’s spokesperson, Mr Mondli Mvambi, asserted that MEC Malakoane went to Pekholong Hospital, saw Patient X and assessed his file. Mr Mvambi explained “the MEC is a doctor in his own right. He saw this patient, he saw the file, he called the clinical specialist in the hospital, assessed the file and jointly agreed with the specialist that this was a deserving case for the ICU.”

Version 2

An article appearing on page 15 of the Mail & Guardian on 22 August quotes MEC Malakoane as providing a very different account: “I didn’t even know the patient’s identity or that he had been transferred to ICU … All I did was to ask [medical personnel] to isolate the patient, who appeared to be in a coma, to prevent psychological trauma to the ones next door.” (“They call me a killer when I know I’m a saviour, says Malakoane”, Mail & Guardian, 22 August 2014).

What the prevention and combating of corrupt activities act says

Section 4 of the Act reads as follows:

4. Offences in respect of corrupt activities relating to public officers

(1) Any –

(a)  public officer who, directly or indirectly, accepts or agrees or offers to accept any gratification from any other person, whether for the benefit of himself or herself or for the benefit of another person; or

(b) person who, directly or indirectly, gives or agrees or offers to give any gratification to a public officer, whether for the benefit of that public officer or for the benefit of another person, in order to act, personally or by influencing another person so to act, in a manner-

(i) that amounts to the-

(aa) illegal, dishonest, unauthorised, incomplete, or biased; or

(bb) misuse or selling of information or material acquired in the course of the, exercise, carrying out or performance of any powers, duties or functions arising out of a constitutional, statutory, contractual or any other legal obligation;

(ii) that amounts to-

(aa) the abuse of a position of authority;

(bb)  a breach of trust; or

(cc) the violation of a legal duty or a set of rules;

(iii) designed to achieve an unjustified result; or

(iv) that amounts to any other unauthorised or improper inducement to do or not to do anything, is guilty of the offence of corrupt activities relating to public officers.

(2) Without derogating from the generality of section 2(4), “to act” in subsection (1), includes-

(a) voting at any meeting of a public body;

(b) performing or not adequately performing any official functions;

(c) expediting, delaying, hindering or preventing the performance of an official act;

(d) aiding, assisting or favouring any particular person in the transaction of any business with a public body;

(e) aiding or assisting in procuring or preventing the passing of any vote or the granting of any contract or advantage in favour of any person in relation to the transaction of any business with a public body;

(f) showing any favour or disfavour to any person in performing a function as a public officer;

(g) diverting, for purposes unrelated to those for which they were intended, any property belonging to the state which such officer received by virtue of his or her position for purposes of administration, custody or for any other reason, to another person; or

(h) exerting any improper influence over the decision making of any person performing functions in a public body.

The TAC believes that the officials may have agreed to accept “gratification” for the benefit of Patient X in the form of a bed in the ICU and the financial and other resources that accompany the bed.

In addition, the TAC believes that:

MEC Malakoane may have agreed to accept “gratification” in the form of goodwill and political favour from Patient X and/or his political connections, including another senior political leader in the Free State;

HoD Motau may have agreed to accept the same “gratification” from these sources as well as from MEC Malakoane; and

DDG Moji may have agreed to accept the same “gratification” from these sources as well as from MEC Malakoane and HoD Motau.

The relationships between these individuals may constitute a “mutually beneficial symbiosis … generating a sense of obligation” on the officials; such relationships have been determined to be a form of “gratification” for the purposes of a charge of corruption under section 4 of the Act. [S v Shaik 2007 (1) SA 240 at 33].

By ordering Patient X to be admitted to the ICU, the TAC believes that the officials may have:

abused their position of authority;

violated a legal duty and a set of rules; and

acted in a manner designed to achieve an unjustified result.

The TAC believes that the officials’ act of ordering Patient X’s admission may have included:

a failure to adequately perform his official functions;

showing favour to Patient X and disfavour to other patients in performing a function as a public officer;

diverting property belonging to the state to Patient X for purposes unrelated to those for which it was intended; and

exerting improper influence over the decision making of people performing functions in a public body.

What the Constitution says

THE MEC may have acted in contravention of section 136(2)(b-c) of the Constitution as well as the Executive Ethics Code made in terms of the Executive Members Ethics Act 82 of 1998. These laws specifically prohibit MECs from:

using their position to enrich themselves;

improperly benefiting another person;

acting in a way inconsistent with their office; and

exposing themselves to a situation involving the risk of a conflict between their official responsibilities and private interests.

In addition, the TAC also believes that the officials involved may have violated their obligations created in terms of section 195(1)(a-b) of the Constitution, which requires public administration to be governed by the democratic values and principles enshrined in the Constitution, including the following principles:

a high standard of professional ethics;

efficient, economic and effective use of resources must be promoted;

services must be provided impartially, fairly, equitably and without bias; and

public administration must be accountable.

The TAC also believes the MEC may have acted in contravention of section 136(2)(b-c) of the Constitution as well as the Executive Ethics Code made in terms of the Executive Members Ethics Act 82 of 1998. These laws specifically prohibit MECs from:

using their position to enrich themselves;

improperly benefiting another person;

acting in a way inconsistent with their office; and

exposing themselves to a situation involving the risk of a conflict between their official responsibilities and private interests.

What the Public Finance Management Act says

The Public Finance Management Act 1 of 1999 (“the PFMA”) provides that HoD Motau is the Accounting Officer of the FSDoH.

Section 38 of the PFMA provides that the Accounting Officer:

must ensure that the department has and maintains an appropriate procurement and provisioning system which is fair, equitable, transparent, competitive and cost-effective;

is responsible for the effective, efficient, economical and transparent use of the resources of the department;

must take effective and appropriate steps to prevent unauthorised, irregular and fruitless and wasteful expenditure and losses resulting from criminal conduct;

on discovery of any unauthorised, irregular or fruitless and wasteful expenditure, must immediately report, in writing, particulars of the expenditure to the relevant treasury and in the case of irregular expenditure involving the procurement of goods or services, also to the relevant tender board; and

must take effective and appropriate disciplinary steps against any official in the service of the department, trading entity or constitutional institution who:

commits an act which undermines the financial management and internal control system of the department, trading entity or constitutional institution; or

makes or permits an unauthorised expenditure, irregular expenditure or fruitless and wasteful expenditure.

Section 86 of the PFMA provides that an Accounting Officer of a department is guilty of an offence if he or she “wilfully or in a grossly negligent way” fails to comply with these responsibilities. The TAC believes that HoD Motau may have wilfully or in a grossly negligent way failed to comply with the above provisions of the PFMA. Section 86 provides that he may be fined or imprisoned for up to five years if convicted of this crime.

What the state is charging him with

The National Prosecuting Authority has charged Malakoane with multiple counts of corruption for which he faces a minimum sentence of 15 years imprisonment. He was arrested in regards to these charges on 10 July 2013 following a 2010 Commission of Enquiry that produced incriminating allegations against him. The prosecution alleges that Malakoane used his position as Municipal Manager of the Matjhabeng Local Municipality in 2007 and 2008 to conduct extensive fraud and corruption. 27 August 2014, his prosecution was again postponed for the umpteenth time.