State ‘won’t be able to charge Masuku’

While the Public Finance Management Act (PFMA) criminalised dereliction of duty by accounting officers, former Gauteng health MEC Dr Bandile Masuku is protected by executive authority, making it impossible for the state to charge for negligence, a legal expert said yesterday.

This is despite Masuku having failed in his bid this week to get the high court to reverse an adverse finding by the Special Investigating Unit (SIU) arising from the awarding of a multimillion-rand personal protective equipment tender.

The SIU probe found, among others, that:

• Instructions governing the Covid-19 procurement were ignored;
• Prices quoted exceeded the limits prescribed in the notes; and
• No competitive bidding.

University of Johannesburg senior law lecturer Dr Sikwani Ncube, said: “He cannot be prosecuted under the PFMA for dereliction of duty because the Act does not criminalise negligence by the executive authority – very kind to the executive.

“Section 642, says even when the executive authority issues a written directive with financial implications, the accounting officer will still be responsible for an unauthorised expenditure – unless the accounting officer would have informed the executive of the implications of the expenditure happening.

“The SIU never found Dr Masuku guilty of any crime and the High Court in Pretoria has also found as such.”