The credibility of Advocate Terry Motau’s VBS Mutual Bank investigative report took a knock on Tuesday when the Pretoria High Court reviewed and set aside the adverse findings against suspended ANC Limpopo treasurer Danny Msiza.
Judge VV Tlhapi expunged five paragraphs implicating Msiza in Motau’s Great Bank Heist report of September 2018, in which he was assisted by popular law firm, Werksmans Attorneys.
Judge Tlhapi agreed with Msiza and set aside Motau’s adverse findings, remarks and conclusions against him. The judge also declared Motau’s failure to afford Msiza a right of reply in line with procedural fairness prior to the release of the report as unlawful and unconstitutional, adding that it violated Msiza’s constitutional rights.
The parts set aside included the reference to Msiza as the VBS “kingpin” - the alleged reference to his name in a WhatsApp message in which a VBS executive allegedly discussed municipal deposits; that he intervened on numerous occasions when his political influence was required; and that he was allegedly involved in discussions over the funds invested by Thohoyandou’s Vhembe District Municipality into VBS.
Msiza and his colleague Florence Radzilani, the ANC deputy chairperson in Limpopo, recently won the political battle for their two-year long suspension to be lifted when the ANC national executive committee decided that they should return to office pending consultations with stakeholders affected by the VBS scandal.
However, the reinstatement had been contested by political opponents and some community groups in Limpopo.
Following the release of the VBS report, Msiza had applied to the courts to review and set aside the adverse findings made against him in Motau’s report. He also wanted the findings to be declared as prejudicial and unconstitutional.
Motau was appointed by the South African Reserve Bank to conduct the investigation.
Judge Tlhapi noted that in terms of Section 34 of the Constitution, “everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum”.
The judge also ordered the Reserve Bank to pay Msiza’s legal costs.
“There is no merit whatsoever in the argument that the affected individual shall have the opportunity in proceedings which might be engaged in the future to clear his or her name; or that he or she may have recourse to a claim for damage,” wrote Judge Tlhapi.
For example, said the judge, “the content of the WhatsApp messages with the name of the applicant may have caused or resulted in a suspicion that the applicant had a role in the impropriety at VBS, as an investigator the source and content had to be verified and no explanation is given why the version of the applicant was not obtained”.
The judge said that: “Where an investigator knows or is expected to foresee that his findings, remarks and conclusions will have consequences for the party on whose behalf an investigation is conducted and for the party against whom findings will be made, he is obliged to listen to both sides and, the party who is likely to be affected by adverse finding is entitled to demand the right to be heard before an adverse remark or finding conclusion or decision is made against him or her”.