AS South African banks wage war against the Sekunjalo Group, its executive chairperson Iqbal Survé and related entities, the matter of bank discrimination has come to the fore. Survé has stated numerous times that there were about 20 companies, including Steinhoff, Tongaat Hulett and EOH, that have been found to have engaged in accounting fraud and some in money laundering, yet their bank accounts and those of their directors remain open.
The banks say the other companies mentioned by Survé had made some reparations by disciplining or firing their corrupt executives. However, the banks have largely ignored the fact that Survé and Sekunjalo adhered to the recommendations of the Mpati Report, and appointed former judge Willem Heath to further investigate the allegations made in the Mpati Report, subsequently releasing a report on Heath’s findings.
Heath found that the Mpati Commission ignored its terms of reference and did not investigate material transactions in which evidence had surfaced that the evidence leader was aware of. “Specifically, these transactions relate to companies such as … Steinhoff … alongside Tongaat Hulett and EOH. These acknowledged frauds were never investigated by the Mpati Commission…”
Heath was also of the view that the Sekunjalo Group and Survé did not fall within the ambit of the Mpati Commission’s Terms of Reference, which renders the commission tainted with illegality. “Consequently, the Commission should not have investigated them or should have been clear about the rationale for including the two in its report,” said Heath.
Who is Willem Heath and what makes him qualified to review the Mpati Report?
Former Judge, Advocate Willem Heath, was born in Boksburg in 1945. After completing his Bachelor of Arts and LLB degrees in 1967 and 1969 respectively at the University of Pretoria, he joined the office of the State Prosecutor. He thereafter joined the Pretoria Bar and attained Senior Counsel status in 1986.
In 1998, Heath was appointed to the High Court (the then Supreme Court) bench. At his request, Heath was seconded as a Judge to the Bisho High Court. Having been appointed to the Bench at the age of 42, Heath was at that stage the youngest Judge to accept an appointment to the bench.
While being in active service on the Bench in Bisho, Heath was colloquially named the “Peoples’ Judge” by the people in the former Ciskei, in recognition of his dedication to his work and his judgments, which promoted the rights of the people under the jurisdiction of the Bhisho High Court.
Heath attracted international acclaim in a landmark judgment he delivered whereby he ruled that a husband can be charged with the rape of his wife. This judgment was internationally reported. A number of Heath’s judgments addressed fundamental human rights matters. As a result thereof, he was shortlisted for the inaugural bench of the Constitutional Court, having been nominated by amongst other, the Black Lawyers Association of South Africa. Heath was, however, not appointed to the Constitutional Court.
In 1995, Heath was appointed by the then Premier of Eastern Cape, Dr Raymond Mhlaba, to serve as the Head of the Heath Commission to investigate fraud, corruption and maladministration in the Eastern Cape.
Due to the successes of the Heath Commission, former President Mandela contacted Heath to congratulate him for his endeavours as Head of the Heath Commission.
In 1997, at the request of former President Mandela, Heath assisted the then Minister of Justice, the Honourable Dr Dullah Omar and the State Law Advisor to assist in the drafting of the Special Investigating Unit (SIU) and Special Tribunals Act and also to accept the appointment as Head of the SIU.
As Head of the SIU, Heath attracted international acclaim as the SIU was then a unique investigative agency, not only in South Africa but internationally. As a result, thereof, Heath was regularly invited to address international conferences, often as a keynote speaker. Such events included attending conferences at Oxford and Cambridge Universities and the World Bank. Heath was also invited by the office of the then Vice President of the United States (US), Mr Al Gore, to attend an anti-corruption conference in Washington DC where Heath was requested to deliver a speech on the work of the SIU.
While in the US (after attending the conference in Washington DC), Heath was invited to several cities in the US as a guest and was also awarded the Freedom of the City of New Orleans.
In November 2000, the Constitutional Court found that as a Judge, it was unconstitutional and contrary to the separation of powers, for Heath to serve as Head of the SIU while concurrently being a member of the Judiciary.
As a result of the Constitutional Court judgment in November 2000 and with due cognisance of media statements by the government, the Executive and the President, which impugned his dignity as a Judge, Heath was of the view that the perception of his independence as a Judge was affected.
Consequently, Heath was of the view that due to the fact perception of the independence of a Judge and as a matter of course, the independence of the judiciary as a whole, dictated that he should no longer serve on the bench. Heath, therefore, applied to former President Mbeki to be granted early discharge from active service as a Judge in terms of the Judges’ Remuneration and Conditions of Employment Act 47 of 2001, which the President refused.
Due to the refusal of the President to grant Heath early discharge from the Bench, Heath was essentially forced to resign as a Judge.