Madlanga Commission of Inquiry chairperson, Justice Mbuyiseli Madlanga, on Wednesday suggested that the Investigating Directorate Against Corruption (Idac) joined National Police Commissioner General Fannie Masemola in the high-profile Medicare24 corruption case, not because the law justified it, but to publicly embarrass and taint him with allegations of fraud and corruption.
The stinging criticism came as former Idac head Advocate Andrea Johnson returned to the commission after being given overnight to justify why the directorate believed it had a mandate to charge Masemola under the Public Finance Management Act (PFMA) in relation to the R228-million Medicare24 tender.
Masemola’s arrest also resulted in serious ramifications, with President Cyril Ramaphosa placing the police general on suspension.
Johnson’s optimism shortlived
Opening her evidence, Johnson appeared optimistic.
“I did my homework and I hope I pass,” she told commissioners.
Her optimism was, however, shortlived as it quickly evaporated.
The commission rejected her legal argument, saying it “doesn’t hold water at all”.
Johnson argued that South African Police Service (SAPS) chief risk officer major general Charity Matlou had warned Masemola about irregularities surrounding the Medicare24 contract and that he delayed terminating the agreement.
However, commissioner Advocate Sandile Khumalo pointed out that Matlou’s own affidavit states Masemola accepted her recommendation and terminated the contract after considering her advice.
PFMA criminalises only wilful, grossly, negligent failures
He said the PFMA criminalises only wilful or grossly negligent failures by an accounting officer.
“You can only sustain the charges if, after he has received advice from the head of risk, he ignores that advice,” Khumalo said.
Johnson maintained that Masemola took too long before acting.
Khumalo disagreed.
“Do you accept that, like any of us, when you get an opinion, you first have to consider it? You first have to apply your mind to it before you act because if you act in haste, you could be sued for breach of contract?”
He added that Johnson herself had recently acknowledged accepting investigators’ briefings without adequately interrogating them.
“One does not, in the normal course, get advice today and act immediately,” Khumalo said.
‘Just a scheme’ to get Masemola arrested
Commissioner Advocate Sesi Baloyi questioned why Masemola had been charged at all when the indictment contained no allegation that he had committed corruption, despite corruption being central to Idac’s statutory mandate.
“The impression that it creates… is that there was no good faith in the intention to prefer a charge because it is justified and supported by the facts,” Baloyi said.
“This was just a scheme to get him arrested or present to court, to have him appear in court, and the purpose achieved.”
She noted that Masemola was subsequently removed from office.
“There must be a reason why you approved the charge,” she said.
Johnson rejected any suggestion that Idac had used the criminal process as a political instrument.
“It should not be seen as it was used as an instrument,” she said.
“It might have been incompetently put, but there was no ill intent.”
Why Masemola joined to fraud case?
Justice Madlanga then turned to the Criminal Procedure Act, questioning why Masemola had been joined to the accused facing fraud and corruption charges when his alleged offence related only to the PFMA.
“Surely, in charging General Masemola together with people charged with fraud and corruption, you did not rely on Section 155,” he said.
Johnson conceded that point.
Madlanga then examined Section 156, which permits the accused to be tried together only in limited circumstances.
“In what way did General Masemola commit those PFMA offences at the same place and same time as the commission of the fraud and corruption?” he asked.
Johnson again conceded.
Before delivering his most pointed criticism, Madlanga praised Johnson’s abilities as an advocate, recalling her role in the Oscar Pistorius appeal.
“You are a good prosecutor… You are actually a good advocate, in my assessment,” he said.
He then questioned the real purpose of joining Masemola in the corruption case.
“Why was he lumped with these people? At face value this seems it must have been done to embarrass him, to taint him and to cause the public to see him as also being complicit in fraud and corruption,” Madlanga said.
“Ordinary members of the public are not going to analyse this. Most of the noise, when the case is talked about, is going to be about the fraud and corruption.”
He concluded: “This was done, I suggest to you, to embarrass him, to taint him, and to make him look as if he too has committed fraud and corruption. That was calculated.”
Johnson accepts Masemola shouldn’t have joined fraud case
Johnson accepted that Masemola ought not to have been joined with the other accused but denied there had been any intention to publicly humiliate him.
“I accepted that in this matter, he should be separated, but at no stage was there an intention to embarrass,” she said.
“I can understand the optics thereof, but at no stage in the charging of Commissioner Masemola was there an intention that he be embarrassed.”
The questioning came a day after the commission heard fresh allegations by Sergeant Fannie Nkosi that Idac investigators had attempted to persuade him while in custody to implicate Masemola, Crime Intelligence head Lieutenant General Dumisani Khumalo and businessman Vusimuzi “Cat” Matlala. Johnson described those allegations as “extremely serious” if proven and told the commission they would require investigation. The commission has made no findings on Nkosi’s complaint, which remains disputed.
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- Justice Mbuyiseli Madlanga criticized the Investigating Directorate Against Corruption (Idac) for joining National Police Commissioner General Fannie Masemola in a Medicare24 corruption case, suggesting it was intended to publicly embarrass and taint him.
- Former Idac head Advocate Andrea Johnson failed to justify legally charging Masemola under the Public Finance Management Act (PFMA) for the R228-million tender, with the commission rejecting her arguments.
- The commission highlighted that the PFMA only criminalizes wilful or gross negligent failures, noting Masemola acted on advice to terminate the Medicare24 contract despite delays.
- Johnson admitted Masemola should not have been charged alongside accused fraudsters but denied any intent to humiliate him, while the commission questioned Idac’s motives.
- Allegations surfaced that Idac investigators pressured a witness to implicate Masemola and others, which Johnson said required further investigation, though these claims remain disputed.
Masemola's arrest also resulted in serious ramifications, with President Cyril Ramaphosa placing the police general on suspension.
"I did my homework and I hope I pass," she told commissioners.
Her optimism was, however, shortlived as it quickly evaporated.
Johnson argued that
However, commissioner Advocate
He said the PFMA criminalises only wilful or grossly negligent failures by an accounting officer.
"You can only sustain the charges if, after he has received advice from the head of risk, he ignores that advice,"
Johnson maintained that Masemola took too long before acting.
"Do you accept that, like any of us, when you get an opinion, you first have to consider it? You first have to apply your mind to it before you act because if you act in haste, you could be sued for breach of contract?"
He added that Johnson herself had recently acknowledged accepting investigators' briefings without adequately interrogating them.
"One does not, in the normal course, get advice today and act immediately,"
Commissioner Advocate Sesi Baloyi questioned why Masemola had been charged at all when the indictment contained no allegation that he had committed corruption, despite corruption being central to Idac's statutory mandate.
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"
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Johnson rejected any suggestion that Idac had used the criminal process as a political instrument.
"It should not be seen as it was used as an instrument," she said.
"It might have been incompetently put, but there was no ill intent."
Justice
"Surely, in charging General Masemola together with people charged with fraud and corruption, you did not rely on Section 155," he said.
Johnson conceded that point.
"In what way did General Masemola commit those PFMA offences at the same place and same time as the commission of the fraud and corruption?" he asked.
Johnson again conceded.
Before delivering his most pointed criticism,
"You are a good prosecutor... You are actually a good advocate, in my assessment," he said.
He then questioned the real purpose of joining Masemola in the corruption case.
"Why was he lumped with these people? At face value this seems it must have been done to embarrass him, to taint him and to cause the public to see him as also being complicit in fraud and corruption,"
said. Madlanga
"Ordinary members of the public are not going to analyse this. Most of the noise, when the case is talked about, is going to be about the fraud and corruption."
He concluded: "
Johnson accepted that Masemola ought not to have been joined with the other accused but denied there had been any intention to publicly humiliate him.
"I accepted that in this matter, he should be separated, but at no stage was there an intention to embarrass," she said.
"I can understand the optics thereof, but at no stage in the charging of Commissioner Masemola was there an intention that he be embarrassed."
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