HOD for Health to appeal R150,000 fine

THE HEAD of the Department of Health in the Northern Cape, Dr Dion Theys, will appeal after being found guilty of three charges of contravening the Public Finance Management Act (PFMA) by the Specialised Commercial Crimes Court in Kimberley this week.

Theys was the acting head of department (HOD) at the time when lease agreements amounting to R13 million were concluded with JP Hugo Trading for nursing accommodation between 2010 to 2012.

An investigation was launched after students complained about the quality of the food and that there was no hot water.

Theys was on Wednesday sentenced to a fine of R150,000 or three years imprisonment, of which R100,000 or two years imprisonment was suspended for five years, on condition that he is not found guilty of the same offence during the time of suspension.

Theys was ordered to pay the clerk of the court R10,000 before September 7 and R2,000 before or on the seventh of each consecutive month until the fine is fully settled.

He was reinstated at the department in April, after both he and the chief financial officer, Daniel Gaborone, were suspended in 2021 after being charged for the procurement of personal protective equipment valued at R43 million in 2020. The charges were provisionally withdrawn on December 8, 2022.

The legal representative for Theys, senior advocate Moses Mphaga, pointed out that a negative outcome in the case could result in a loss of earnings as it could jeopardise his position as HOD of the Department of Health and affect his prospects of employment at other state departments.

“The possibility of losing his employment is in itself a strong deterrent. He is paying the tertiary tuition of his 21- and 24-year-old daughters. He should be given a wholly suspended sentence. It should be taken into account that he paid bail of R30,000,” Mphaga told the court.

He indicated that practising as a medical doctor was “no longer like it used to be”.

“Most doctors are now HODs.”

Mphaga also pointed out that the department had not incurred any financial losses and added that there had been no haste to investigate breaching the PFMA.

“The offence was committed while my client was carrying out his duties while acting in the interests of the state. There was value for money.”

Senior advocate Isaac Mphela, from the Specialised Commercial Crimes Unit (SCCU), acknowledged that Theys had no previous convictions and played an integral part in the department.

"It is a serious offence and the sentence should serve as a lesson to ensure that should he retain his position as the HOD, all procurement processes are stringently implemented," said Mphela.

While he did not recommend a term of direct imprisonment, Mphela believed the sentence should act as a deterrent to prevent the flouting of processes.

“The accused does not seem to have any remorse. A clear message should be sent out to deter this type of behaviour that is prevalent in the court and the country. A wholly suspended sentence is a slap on the wrist and he should be given a fine of R200,000.”

Magistrate Vernon Smith questioned why competitive bids were not invited before the tender was awarded and stated that procurement processes were flouted.

“The same service provider was used for accommodation, catering, laundry, cleaning and security services, while some of the services were not mentioned in the contract. Legal services should have looked at compliance. The tender was not an emergency and the deviation was not justified. Hoffe Park was unfairly favoured. Even if the price was cheap, cheap is not necessarily more efficient,” Smith said.

He added that three “dubious rental” leases were concluded.

“The contract should have been in place before occupation.”

He noted that Theys was a “good person and useful member of society” who may have made “an error in judgement”.

“The future employment of the accused depends on the outcome of this case, Although it is a serious offence, I have seen more serious offences. A term of imprisonment will be too harsh. The legal system is to deter people from committing crime and instil trust in the judiciary.”

He advised that an application for leave to appeal should be made within the next 14 days.

The Department of Health referred enquiries regarding whether Theys would remain in the employment of the department to the Premier’s Office.

The department funded Theys’ legal costs.

The regional spokesperson for the National Prosecuting Authority, Mojalefa Senokoatsane, said the trial started on March 29, 2022 and took more than a year to conclude due to the seriousness of the charges.

“The total value of the three leases that were concluded for the JP Hugo hostels was R96 million, while the leases that were concluded while Dr Theys was the acting HOD and accounting officer amount to R13 million.”

He added that the PPE investigation, led by the Hawks and guided by the NPA, involving Theys and Gaborone, where charges were provisionally withdrawn, was still ongoing

The Director of Public Prosecution (DPP) in the Northern Cape, Livingstone Sakata, applauded the prosecution led by the head of the SCCU, advocate Brian Mdlalose, and senior State advocate Mphela, and the Hawks in securing the conviction on a “complicated matter”.

“The DPP hopes this sentence will send a clear message to other perpetrators of corruption and fraud that indeed the NPA and law enforcement agencies are serious about fighting crime.”

The provincial head of the Directorate of Priority Crime Investigation, Major-General Stephen Mabuela, also congratulated the team for the conviction.

The spokesperson for the Office of the Premier, Bronwyn Thomas-Abrahams, said that they would only be in a position to provide a comprehensive response on Dr Theys once his application for leave to appeal his sentence had been finalised.