Justice Mbuyiseli__ Madlanga__ has questioned former Independent Directorate Against Corruption (Idac) head Andrea Johnson over why suspended National Police Commissioner General Fannie Masemola had been charged alongside Vusimuzi “Cat” Matlala and 15 others in the R360 million Medicare24 tender case.

On Wednesday, Madlanga argued that the decision appeared inconsistent with the legal principle that “persons implicated in the same offence may be tried together”.

Matlala, three company directors and 12 police officials face fraud and corruption charges over the allegedly irregular award of the Medicare24 contract.

Masemola was later added to the indictment, facing a charge of contravening the Public Finance Management Act (PFMA) in his capacity as South African Police Service (SAPS) accounting officer.

“General Masemola was wrongly lumped with these other people, you must accept?” Madlanga asked Johnson.

“I see that,” she replied.

Madlanga said Masemola had been prejudiced by being charged alongside Matlala and his co-accused despite not being charged with fraud and corruption.

“We want to know why this was done … Why was Commissioner Masemola lumped with these people, charged with fraud and corruption, when he is not?

“At face value, it seems to me that this must have been done to embarrass him, to taint him and to make the public see him as having been complicit in fraud and corruption.”

Madlanga suggested the decision had been “calculated” to damage Masemola's reputation.

Johnson conceded that Masemola should have been dealt with separately but denied there had been any intention to embarrass him.

“I accept that this matter should have been separated,” she said. “I can understand the optics thereof but at no stage in charging Commissioner Masemola was there an intention that he be embarrassed.”

Commissioner Sisi Baloyi questioned whether the charges against Masemola could stand independently, noting that Idac’s mandate was limited to offences falling under its jurisdiction.

Madlanga said the charges against Masemola had been presented as “additional charges”, which, by definition, should be attached to offences falling within Idac’s mandate.

“And if it’s only offences under the PFMA, then Idac does not have a mandate,” he said.

“On what basis does Idac have the mandate to charge General Masemola under the PFMA standing all by itself?”

Johnson argued that the accused in the Medicare24 tender case were charged with different offences arising from the same alleged R360 million corruption and commercial crime investigation.

“We have several accused that are charged and you will find that not all the accused are charged with all of the offences,” she said.

Johnson said General Charity Matlou’s risk audit had alerted Masemola to the allegedly unlawful Medicare24 tender and recommended that he stop further payments. Matlou is the chief risk officer at the SAPS.

“It took him a long time to do so. In not acting promptly and diligently as the accounting officer, monies in the approximate value of R50 million were paid out because of these unlawful corrupt activities before the contract was stopped,” she said.

Johnson said that if Masemola had acted immediately after receiving the report, the additional financial losses would not have occurred.

“We never said he was party to the corruption but he has been charged under the PFMA arising from those matters because he was aware of them and did not stop them,” she said.

Madlanga commended Johnson for making what he described as “a valiant attempt” to justify the charges but rejected her reasoning.

“You cannot force the additional charges merely by relating them to charges faced by other people that have nothing to do with him whatsoever,” he said.

Johnson responded that if the Medicare24 corruption had not occurred, Masemola would not have faced charges under the PFMA.

Madlanga said the commission’s concern was not whether Masemola had contravened the PFMA but whether the charges fell within Idac’s statutory mandate.

Commissioner Dumisani Khumalo argued that a PFMA contravention required wilful or grossly negligent conduct. “You cannot sustain the PFMA charges if, after receiving advice from the head of risk, he ignores that advice and allows the SAPS to continue with the contract.”

Johnson said the delay between Masemola receiving the report and terminating the contract was central to Idac’s case.

“From the time he was informed by the risk officer, General Matlou, he took quite a bit of time before acting on the advice. It is precisely because he took so long that monies were released during that period,” she said.

Khumalo said accounting officers often required time to assess legal advice before terminating contracts because such decisions could trigger subsequent court challenges.

“Some of the issues we’ve criticised you for were blindly accepting briefings without underlying documents to satisfy yourself … One does not, in the normal course, accept advice and act immediately,” he said.

He added that Idac’s charge sheet created the misleading impression that the R50 million payment was made after Masemola had been advised to terminate the contract. “General Matlou does not say that General Masemola took a long time or that his report was ignored,” Khumalo said.

Baloyi said the decision to include Masemola when he was charged with a PFMA contravention “appears to have been a scheme simply to get him arrested and brought before court. The purpose is achieved by that fact alone”.

Baloyi said it should have been obvious to the prosecutor who authorised the charges that Masemola was not alleged to have committed fraud or corruption.

“Accepting that it would have been obvious that this charge sheet is wholly inadequate for purposes of [the Idac] mandate, there has to be another reason why you approved the charge,” she said.

“To me, it gives the impression that the whole purpose of this charge sheet was simply to have him appear in court.”