Duties and functions

How and why the ANC’s internal disciplinary process affects…

When the Special Investigations Unit (SIU) published its final report on corruption in Covid-19 public procurement this week, its findings on former Gauteng Health MEC Bandile Masuku were unequivocal.

Masuku, according to the report, “did not fulfill his obligations to abide by the Constitution; in its general oversight responsibilities to the contributing department that the department failed to comply with the requirements of the Constitution, and its obligations under the PFMA [Public Finance Management Act]”.

This has been known since September 2020, when the SIU reported these findings to the Premier of Gauteng and Masuku was subsequently sacked as MEC for Health. At the time of the controversy, Masuku was also a member of the Gauteng Provincial Executive Committee (PEC) of the ANC and faced separate charges of breaching the ANC constitution within his own party.

For the first time, we now have access to Masuku’s ANC disciplinary proceedings file relating to this case – recently released by the Zondo Commission of Inquiry into State Capture as part of the documentation at the support of the testimony of President Cyril Ramaphosa.

DM168 may reveal that the picture painted by this dossier raises serious questions about the ability and willingness of the ANC’s Disciplinary Committee to hold its members to account. It comes as the party’s disciplinary body is already in the spotlight, amid calls to sanction Tourism Minister Lindiwe Sisulu for her insults to the judiciary and the South African Constitution.

Minutes of the Discipline Committee

As part of a package of documents requested by the state capture inquiry, ANC legal adviser Krish Naidoo sent the commission minutes of the National Disciplinary Committee sessions of the ANC between 2014 and 2021. If this is the committee’s full record over that eight-year period, it appears the body has met 26 times – just under four times per year – to deliberate on cases.

Matters considered by the national committee had already been decided by the provincial disciplinary committees of the ANC, with the national body charged with performing a review or appeal function of decisions of the lower committee. The cases the national committee heard during this period ranged from allegations of fights by lesser-known members of the ANC to accusations of sexual assault against former Western Cape ANC leader Marius Fransman and two cases related to the personal protective equipment (PPE) corruption scandal: that of Masuku and that of former Ramaphosa presidential spokesman Khusela Diko.

The records are generally legalistic and procedural in nature, but the record of deliberations in the Masuku and Diko cases offer rare insight into the reasoning of the ANC’s disciplinary committee. Masuku’s case is particularly instructive because, in total, four separate entities investigated the case or heard evidence about it: the Gauteng Provincial ANC Disciplinary Committee, the National ANC Disciplinary Committee , the SIU and the Gauteng High Court – after Masuku tried to overturn the SIU’s findings in early 2021.

Although these four entities did not assess the overlapping turf – the two ANC bodies only looking at potential breaches of the party’s constitution – the stark differences in the tone and conclusions of the national commission of discipline of the ANC, compared to the conclusions drawn by the other entities, are revealing.

Background to the Masuku Saga

On July 26, 2020, the Sunday Independent newspaper published a lead story alleging Masuku’s close friend Thandisizwe Diko – the husband of former Ramaphosa spokesman Khusela Diko – had been improperly granted a contract by the through his company Royal Bhaca to supply the government with various Covid-19. PPE items at inflated prices. The article implied that Thandisizwe Diko was awarded the contract due to his close friendship with Masuku, then Gauteng Health MEC.

The allegations caused an immediate outcry and were the source of intense political embarrassment for Ramaphosa due to his spokesperson’s apparent proximity to potential corruption.

The ANC’s Gauteng PEC has asked its provincial disciplinary committee to investigate both Masuku and Diko. On April 7, 2021, both were found guilty by the provincial disciplinary committee of charges primarily relating to discrediting the ANC, and both were suspended as members of the PEC. Masuku and Diko appealed the decision.

About six months earlier, the SIU had informed the Gauteng Premier of its findings that Masuku had breached his oversight obligations. Masuku sued the SIU in an attempt to overturn the findings, and on April 12, 2021, the Gauteng High Court dismissed Masuku’s claim.

The ANC minutes show that just over a month later, on May 17, 2021, the party’s National Disciplinary Committee (NDC) met to consider Masuku and Diko’s appeals. The chairperson of the committee was then Mildred Oliphant, and she was joined by Nathi Mthethwa, Nocawe Mafu, Boitumelo Molio and Faith Muthambi as committee members.

How the ANC Disciplinary Committee handled the case

The record shows that the NDC decided to hear Masuku’s and Diko’s cases together, on the grounds that the issues involved were “the same or substantially the same”. This in itself seems a strange decision. Although Masuku and Diko faced the same formal charges under Rule 25.17 of the ANC constitution – “engaging in any unethical or immoral conduct which is detrimental to the character, values ​​and ‘integrity of the ANC’; and behave in a way that could discredit the ANC – the circumstances of the two individuals were very different.

Masuku was suspected of having – at best – failed to exercise proper oversight in his position as political chief of the Gauteng health department when inflated contracts were awarded to Royal Bhaca, a company which was not authorized to sell medical equipment. Diko had no oversight responsibilities or involvement in governmental or provincial health affairs; she was charged instead with essentially exercising poor judgment by failing to disclose her husband’s business interests.

With respect to Masuku, the NDC concluded that even if he failed in his oversight responsibilities, it did not necessarily constitute “unethical” conduct in terms of his relationship with the ANC.

“For a Discipline Committee to adjudicate on a charge of unethical conduct against a public official based on how he discharges his oversight responsibilities in government, it is, in the opinion of the NDC, a clear case of excess,” the committee concluded.

Reiterating that its only concern is “organizational discipline”, the NDC also explicitly states in the minutes that the ANC only sanctions members for “acts of commission and not of omission” – in other words, the ANC “does not purport to discipline a member for not doing or saying something that he should or should have done or said”.

The source of this extraordinary notion, which appears to give ANC leaders carte blanche to turn a blind eye to wrongdoing, is unclear. No such principle is mentioned anywhere in the ANC constitution, nor in other key ANC policy documents such as the Eye of the Needle report.

With regard to Diko, the committee (correctly) states that there is currently no formal policy prohibiting family members of ANC politicians from doing business with the state. The NDC then goes further, suggesting that expecting Diko to disclose her husband’s business dealings in the absence of a clear policy requiring him to do so would be an “unreasonable burden”.

In a particularly jaw-dropping passage, given the circumstances of the case, the NDC concludes: “Making politicians responsible for disclosing the business interests of their spouses, in circumstances where there is no legal or ethical obligation to do so. doing, could contribute to the subliminal narrative circulating in some quarters that black politicians are inherently corrupt and, once they enter public office, they will dispense patronage to their wives and children. In other words, they are selfish and have no interest in serving the people.

The NDC concluded that there was no clear evidence that Masuku and Diko violated the ANC constitution and declared their appeals successful. Both were therefore reinstated as members of the Gauteng PEC.

What the court found

At the time of the NDC meeting, committee members were clearly aware of both the SIU findings against Masuku in particular and the Gauteng High Court judgment against him. In fact, the record cites the judgment of the relevant court, noting that the court found that “Masuku’s reputation as a public office holder has been tarnished. In the short term, his political career was clearly cut short.

Surprisingly, however, the context in which the court is quoted by the NDC gives the impression that the court is expressing sympathy for Masuku’s plight. That couldn’t be further from the truth. The Gauteng High Court found that: “…Dr Masuku was negligent in his duties…despite holding a critical leadership position. This conduct justifies an adverse inference as to his lack of professionalism and diligence in carrying out his duties. His conduct shows a lack of judgment and diligence. His version as given to the SIU has been faithfully reproduced. What he is accused of is not lying; her ignorance was taken at face value, despite the skepticism she fully deserved, but for negligence. Prima facie, Dr. Masuku’s own version is an admission of unprofessionalism and dereliction of duty.

The court also found that:

“As the political head of the GDoH [Gauteng Department of Health]who had assumed the front-line role of centralized PPE supply agent for the entire provincial government, in the face of the greatest public health risk in a century, and being the co-chair of the province’s command council, and, necessarily, be aware of the risks of irregularities if proper controls were not in place to regulate the strained and vulnerable emergency procurement process, [Masuku] was so deaf and blind to these risks that he took no steps to direct and prevent his department from falling into the foreseeable abyss.

How could the NDC read the judgment and come to the conclusion that those scathing words alone did not constitute Masuku discrediting the ANC by association?

But for anyone who expects the ANC’s internal disciplinary mechanisms to act decisively in a case like the one currently involving Lindiwe Sisulu, the historic NDC minutes hold little hope. DM168

This story first appeared in our weekly newspaper Daily Maverick 168 which is available for R25 from Pick n Pay, Woolworths, Exclusive Books and airport bookshops. To find your nearest retailer, please click on here.