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Former judge Willem Heath’s scathing report on PIC Commission unpacked

Published Aug 2, 2022

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FORMER judge Willem Heath has cleared the Sekunjalo group and related entities of wrongdoing in a scathing review report of the proceedings and findings of the Commission of Inquiry into alleged impropriety at the Public Investment Corporation (PIC).

Heath in his extensive report released last week (Monday) found that the commission could be rendered illegal. Heath also found that there were critical documents missing from the commission’s website that were of public interest.

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He said the commission effectively failed to provide evidence and critical facts and it also did not give some of the targeted entities a chance to appear before it to tell their side of the story, which lays it open to claims for damages and restitution.

The Heath Report found that:

  • Sekunjalo Investment Holdings (SIH) was never part of the terms of reference of the PIC Commission
  • The term malfeasance cannot be applied to Sekunjalo
  • The conduct, findings and recommendations of the PIC Commission was irreparably tainted by illegality
  • The commission failed in complying with its terms of reference and its rules

Heath, a retired judge has been part of the legal fraternity for a number of decades and previously practised as Senior Counsel, was appointed to the High Court Bench, served as head of the Heath Commission and was appointed as the inaugural head of the Special Investigating Unit.

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PIC Commission of Inquiry proceedings tainted by illegality

THE entire proceedings of the Commission of Inquiry into allegations of impropriety at the Public Investment Corporation (PIC) are tainted by illegality, according to retired Judge Willem Heath’s findings, published in the Review Report of the Proceedings and Findings of the PIC Commission of Inquiry.

Heath, in the report seen by Independent Media’s investigations unit, makes claims that the evidence leader advocate Jannie Lubbe SC had not acted in good faith and failed to observe and apply the principles of natural justice.

“The PIC Commission and its evidence leader ignored its terms of reference and was aware of significant corruption, according to emails that we have seen in relation to several transactions. The commission’s failure to investigate these transactions should mean that the commission operated with illegality. Sekunjalo should urgently consider setting aside the PIC Commission, based on illegality.

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“Sekunjalo and Dr Iqbal Survé should immediately institute a damages claim for reputational and other losses suffered, as a result of the illegality and misrepresentation of Sekunjalo Group’s actions in the PIC Commission’s report. The PIC Commission blatantly ignored its own affidavits and testimonies, presented by witnesses to the commission,” reads the report.

Heath said the evidence that was examined showed that the evidence leader ignored crucial evidence, which he was aware of, and coached and directed witnesses to seek a pre-determined outcome.

No wrongdoings at AYO

AYO Technology Solutions (AYO) has been cleared of wrongdoings in its investment deal with the Public Investment Corporation (PIC). Instead, retired Judge Willem Heath found that the PIC Commission had failed to conduct a proper investigation before concluding on the matter.

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Judge Heath, who is also the former head of the Special Investigating Unit (SIU), also found that the PIC, Africa’s largest asset manager, was biased against AYO in seeking to recover its lost investments.

Heath this week released his review report of the proceedings and findings of the PIC Commission of Inquiry, which was privately commissioned by Sekunjalo Investment Holdings (SIH) and some of the companies associated with Sekunjalo, after the outcome of the PIC Commission of Inquiry into allegations of impropriety at the state asset manager.

The PIC Commission’s report, according to the Heath Review Report, had unfairly tainted SIH, it’s executive chairman Dr Iqbal Survé, and associated companies, including JSE-listed AYO.

Heath, in his report, exonerated AYO, and Sekunjalo, and pulled no punches in rebuking PIC Commission’s investigation and outcome, punching holes in the report. When analysing the PIC Commission’s report, Heath found many discrepancies and has concluded that it is reviewable.

Heath further concluded that the Commission had acted unfairly against Survé, as by being among the first persons to testify before the commission, he was not given a chance to confirm, rebut and/or clarify the testimony of other former AYO and PIC executives.

Gill Marcus found wanting during PIC Commission

FORMER SA Reserve Bank governor Dr Gill Marcus has been found wanting by retired Judge Justice Willem Heath, who conducted a review of the PIC Commission Report into alleged impropriety at the Public Investment Corporation (PIC).

Judge Heath was commissioned to probe the outcome of the PIC Commission by Sekunjalo Investment Holdings (SIH), in which Marcus was one of the assistant commissioners.

The aim of involving Heath was to review the report on the proceedings and findings of the PIC Commission of Inquiry, which has produced significant negative press for Sekunjalo and some of the entities associated with it – loosely called the Sekunjalo Group.

President Cyril Ramaphosa appointed former Supreme Court of Appeal Justice Lex Mpati to lead the investigation on the allegations of impropriety at the PIC, while Marcus and Emmanuel Lediga were assistant commissioners.

Heath found there was good cause for Marcus to have recused herself from the commission. Heath cited in his report, which has been seen by Independent Media but is yet to be made public or shared with interested parties, that while under the governorship of Marcus, the Reserve Bank approved Steinhoff International’s listing on the Frankfurt Stock Exchange. Frankfurt is the largest of the seven stock exchanges in Germany.

It was also found that while Marcus was the executive director of the Knysna Initiative for Learning and Teaching (Kilt), the Western Cape-based NGO received donations from Steinhoff.

Former PIC chief decries damage done to black professionals

THE former chief executive of the Public Investment Corporation (PIC), Dr Dan Matjila, has lamented the reputational damage black professionals and black-owned businesses have suffered as a result of the findings of commissions that lacked substantial evidence.

Reacting to Judge Willem Heath’s Review Report of the proceedings and findings of the PIC Commission of Inquiry into impropriety at the PIC, Matjila said he was relieved that no evidence was found to substantiate the allegations put forward by the commission, and that he had a close relationship with the chairman of the Sekunjalo Group, Dr Iqbal Survé.

“The findings of the Heath Report buttress our affidavit that we filed in December 2020 in our application to challenge the PIC report. A lot of black businesses and black professionals’ reputations have been damaged by the findings and recommendations that are not supported by credible evidence of those commissions,” he said.

Matjila indicated that his legal team was still in the process of submitting a supplementary affidavit in support of his application, challenging the PIC Commission, which among other findings, concluded that the board of Africa’s largest asset manager was “a rubber stamp for the decisions driven by Matjila”.

The PIC Commission’s findings are now back in the spotlight after Heath found it was not reasonable to conclude that there was a suspicious relationship between Survé and Matjila, and that Matjila may have “unduly influenced any of the transactions the Group and/ or any of its associated entities”.

In 2020, Matjila lodged a court application in the North Gauteng High Court for a review of the findings of the PIC Commission, led by Justice Lex PIC. The application sought to remove, expunge and/or delete the remarks, conclusions, findings, and/or recommendations from the commission’s report.

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