Thread by @TribunalSpecial

SPECIAL TRIBUNAL DISMISSES THIRD-PARTY NOTICE APPLICATION BROUGHT BY THE FORMER GAUTENG HEALTH CFO, Ms Kabelo Lehloenya.

The Special Tribunal has dismissed the application to join Gauteng Premier David Makhura and the Gauteng Provincial Government to be joined

jointly and severally liable and wrongdoers in the civil recovery proceedings in the multi million procurement of PPEs.
On the 19th August 2021, the Special Tribunal heard Lehloenya's arguments where she sought indemnification or contribution from Makhura, both in his personal

and official capacities.
Lehloenya issued the third party notice to secure the joinder of seven third parties to the main action which is pending before the Special Tribunal. Although she cited Ledla Structural Development and Beadica 423 CC, she sought no relief against them.

In the min action, the SIU seeks to recover from Lehloenya the loss suffered by the State in the procurement of Covid-19 PPE items.
Lehloenya denies liability.
She sought to join indemnity or contribution by way of third party notice. Makhura opposed the application by way of

Exception on the grounds that Lehloenya failed to disclose the cause of action and that the procudurenused was an irregular proceeding.
The Special Tribunal heard these interlocutory issues separately from the rest of the issues.

Lehloenya and former Health Head, Prof Mkhululi Lukhele, who are cited in the main action, are opposing it.
They filed a plea. Lehloenya subsequently filed an amended plea.
Lehloenya alleged that the impugned contracts were a result of the centralized procurement system which

Makhura oversaw and that at all material times she acted in the course and scope of her employment.
Also, she contested the SIU's argument that she has forfeited the state protection. She sought to hold the Premier vicariously liable for the loss.

As against Lukhele, Lehloenya alleges that she was CFO at the Department from 1 February 2018 until 1 August 2020 but only performed her duties until 28 May 2020. She further alleged that Lukhele together with Lesiba Arnold Malotana and Thandiwe Loraine Pino, whom she also

sought to join in the third party notice, approved payments to Beadica.
Judge Lebogang Modiba heard that Lehloenya sought the following relief against Makhura:
1. A contribution or indemnification on the basis that they are joint wrongdoers as contemplated in Section

1 of the Apportionment of the Damages Act.
2. A declaration that these parties are joint wrongdoers as contemplated in Section 2 of the Apportionment of the Damages Act

In the Heads of Argument, Lehloenya urged the Special Tribunal to join Makhura Mero metu as it is in the

public interest that he answered the allegations.
Makhura opposed the application on the basis that it was incompetent, that Lehloenya has not advanced any allegations to sustain the relief, and that there was no cause of action.

Judge Modiba found that the application by Lehloenya, as pleaded, was indeed incompetent.
Judge Modiba found also that Makhura and the Gauteng Provincial Government were already represented in the main action as the SIU is the representative Plaintiff on behalf of the

State in terms of Section (4) (1) (c) and 5 (5) of the Special Investigating Units and the Special Tribunals Act.
Judge Modiba found that the respondents in the third party notice application cannot be joined as such in their own action.

The Judge also found inconsistencies in Lehloenya's citation of the SIU in both the third party notice and the summons. The Judge also found that the claim by Lehloenya that Makhura had abused his power and authority was bad in law.

Judge Modiba expressed difficulty with Lehloenya's joint, alternatively concurrent joint wrongdoers claim, as it relied less in the facts as pleaded. On vicarious liability, the Special Tribunal found that Lehloenya was not entitled to any recourse.

ORDER: In the event Judge Modiba granted the following order:
1. Premier Makhura is his official capacity and the Gauteng Provincial Government's application to strike out succeedsbwith costs.

2. Lehloenya's third-party notice is struck out as against Makhura and the Gauteng

Provincial Government.

3. Premier Makhura in his personal and official capacity and the Gauteng Provincial Government's exception is upheld with costs.

4. Mkhululi Lukhele's special plea is upheld with costs.

5. Lehloenya's third party claims against Premier Makhura

in his personal and official capacity, the Gauteng Provincial Government, Lukhele, Malotana and Pino are dismissed.

6. The above costs are inclusive of the costs of two counsel where so employed.

The judgment was was handed down electronically by circulation to the parties'

legal representatives aby email and uploading on Caseline.

Enquiries: Selby Makgotho
Special Tribunal Spokesperson
0829075082
E-mail: [e-mail]