Thread by @TribunalSpecial

The proceedings into the third party notice application by Ms Kabelo Mantsu Lehloenya begins before the Special Tribunal. Premier David Makhura and the Provincial Government, represented by Adv Ngwako Maenetje, SC, are opposing the application.

The SIU is the Plaintiff. Tge defendants are Mantsu Kabelo Lehloenya, Mkhululi Lukhele and the MEC for Health. The third party respondents are Premier Makhura, The Gauteng Provincial Government, Mkhululi Lukhele, Arnold Lesiba Malotana, Thandie Pino, Ledla and Beadica

The condonation application stands to be admitted. The issues have been fully ventilated.
Judge Modiba grants condonation application.

Lehloenya seeks an indemnification of contribution from the cited third party notice respondents. Adv Maenetje SC argues there is no basis for the claim and that the argument is legally incompetent.

The state cannot be liable for Lehloenya's conduct because she has lost state protection, Adv Maenetje SC tells the Special Tribunal

The determination as to whether she has lost state protection still has to be made at the trial, Judge Modiba says.

Adv Maenetje SC argues that to join the third party in the basis of indemnity is not sufficient. Lehloenya cannot have no claim against the government and premise it on the SIU succeeding in the claim for civil recovery proceedings

The Premier and the Provincial Government say Lehloenya cannot join them on some contingency basis. She is basically on her own, Adv Maenetje SC tells the Special Tribunal

The right of indemnification only arises in a contract and in this case there was none. There was no co-surety, legal basis and or statute governing Lehloenya's conduct, Adv. Maenetje SC argues, adding there is no state protection.

Another point is that in the third party notice is that Lehloenya wants the Provincial Government to be joined in the matter when in fact it is already represented by the SIU, Adv Maenetje SC argues. Judge Modiba however says she does not agree that the SIU represents government

The Premier is also cited in his personal capacity which Adv Maenetje SC now turns to

He says the Premier cannot be held liable in his personal capacity as Lehloenya alleged he abused his power and office. She alleged that the Premier enjoys state protection. According to Lehloenya the Premier should contribute any amount the Special Tribunal orders her to pay

The other ground is on the ground that the Premier and the Provincial Government have committed no wrongdoing and have not lost state protection. According to Adv Maenetje SC there is no wrong doing on his clients' side.

The Premier and the Provincial Government argue that Lehloenya's submissions be dismissed as an irregular proceedings in terms of Rule 30 of the Uniform Rules of the High Court..

Adv Daniel Berger SC for Mkhululi Lukhele, the former Head of Department, who is also the second defendant in the main application and third respondent in the third party notice, takes the stand.

Adv Berger SC says all the duties by the SIU, and the breaches thereof, are the breaches of the contractual obligation.
The SIU' s claims seeking payments from Lehloenya and Lukhele are based on the contracts and raise no delictual liability.

MS Lehloenya in her plea raises several defences

She alleged the HOD approved payments to Ledla while aware that payments were irregular. She charges that Lukhele disregarded PFMA regulations and ought to be liable. According to Lehloenya, Lukhele contravened his contractual obligation by failing to protect the finances

Adv Berger SC argues that the fundamental issue is on whether Lehloenya and Lukhele breached their employment contracts in pursuit of the payments to Ledla.

Adv Berger SC says the issues between Lukhele and Lehloenya are substantially the same

Lukhele is cited as the second respondent in the main action but also appears in the third party notice as third respondent.

Adv Berger SC says it serves no purpose to join Lukhele as a third party when he is already a party to the proceedings.

Adv Berger SC claims nowhere in the Particulars of Claim that she is entitled to indemnity due to the contract. Lehloenya relies on the Apportionment of the Damages Act, which is a basis for seeking indemnity from Lukhele.

The Apportionment of the Damages Act does not apply to claims in contracts, Adv Berger SC argues.

The common law that Lehloenya seeks and the statute are against her.

Was the legal issue that arose independent of the contract? Adv Berger SC asks

Adv Berger SC says Lehloenya's joint liability against Lukhele must be based on delict as per the Heads of Argument.

Lehloenya seeks her relief tied to the Apportionment of the Damages Act and so is the indemnity. She understood the SIU's claim in delictual terms.

There is nowhere in Lehloenya's amended plea where she pleads delict. What is her cause of action against Lukhele? Adv Berger SC asks

Proceedings adjourn until 11H45

Proceedings resume. Adv Sunday Ogunronbi for Lehloenya takes the stand

Adv Ogunronbi argues that the third party notice is necessitated by the joint wrongdoing and liability involving the Premier, the Gauteng Provincial Government and Lukhele in the procurement of the PPEs worth millions of rands.

The common law recognizes two types of wrongdoing: joint and liability, Adv Ogunronbi argues

Joint and concurrent wrongdoers are recognized by the common law. Joint wrongdoers in common law means a right to claim indemnification or contributions from the wrongdoer. The third party notice is not dependent entirely on Rule 13 but also dependent on common law

Adv Ogunronbi argues that the concept of joint wrongdoers equally includes concurrent wrongdoers.

What places Lehloenya in the corner is the relief is that she seeks the Apportionment of the Damages from Lukhele and vicarious liability on the Premier and the Provincial Government

The claim against the Premier in his personal capacity is based on the fact that the centralized system in procurement which created the risk of harm and had material effects on the conditions of employment, Adv Ogunronbi argues.

The alleged loss of financial services was a result of the centralized system and the Premier should have intervened and stop the Provincial Government and the Department of Health from suffering further financial losses.

On Lukhele, Lehloenya seeks a relief based on the invoices beyond the time she was in office.

Lukhele accepted Lehloenya's resignation in May and ordered Lehloenya to vacate the premises immediately.
Adv Ogunronbi argues that his client cannot be held liable for payments made beyond her tenure in office.

The third party notice is conditional. If judgment is made against Lehloenya, she seeks a relief that makes Lukhele to pay. She says payments were made even after she left office even if a red flag was raised on the contracts

Lehloenya left the Department on the 28th May 2020.

Her liability on Lukhele is that her liability should be up until the time she was in office not afterwards. If the defense is upheld the cause of action against Lukhele is that he (Lukhele) be joined and be liable as the one having authorizing payments.

Adv Ogunronbi argues that at all material times Lehloenya, as CFO, executed her duties with the approval of Lukhele who was the Head of the Department.

Lehloenya contends that Lukhele was negligent in his execution of duties.

Lehloenya argues that 95 percent of the payments were made after she had left the Department and that Lukhele had approved them despite the adverse media publicity at the time

Lehloenya contends that Premier Makhura, in his personal capacity, should be held liable in that state protection does not extend to politicians.

There is no basis to claim state protection for the Premier to claim that like a civil servant, Adc Ogunronbi argues.
He says the Premier displayed recklessness in the awarding of the contract. He had knowledge of invalidity and never acted on the reports of wrongdoing.

The Premier must come to court and account for what he knew and what he didn't know, Adv Ogunronbi tells the Special Tribunal

The circular calling for the centralized system of PPE was way above Lehloenya. The Premier is the direct cause of the chaos that happened in his province and administration. He abused his office and that invokes personal liability, Adv Ogunronbi argues

The Premier should assist the Special Tribunal on the legality of the centralized procurement system, according to Adv Ogunronbi.
He owes the public the duty and caused the damage. The critical point to be made is that the claim for self enrichment is neither here no there

The SIU has not pleaded in the Particulars of Claim the basis enrichment in respect of Lehloenya.

Judge Modiba asks who exactly is the Gauteng Provincial Government as cited in the third party notice

The SIU is not the Department of Health, Judge Modiba remarks

Lehloenya bears the onus of duty to proof contributory negligence

If Lehloenya wants the Premier in his personal capacity there must an allegation arising out of the statute, contract or implied by law, Adv Maenetje SC argues

Adv Maenetje SC disputes that politicians do not enjoy state protection and that the principle is that when acting official duties the state protection applies. When engaging in unlawful activities you immediately forfeit state protection.

Adv Berger SC for Mkhululi Lukhele argues that the contribution or indemnification is based entirely on the Apportionment of the Damages Act.

Adv Berger SC wraps up his submissions

Judge Modiba thanks the parties for the patience and assistance in the determination of the issues. In the event the third parties is not upheld the case management will be convened to determine trial dates.
The proceedings are adjourned.
Judgement is reserved