Ministry of Employment and Labour update on case against Mthunzi Mdwaba, Thuja Holdings and others (Case 2023/123188)
The Minister of Employment and Labour, Thulas Nxesi brought an urgent application in December 2023, to stop the payment of 5 billion rands of UIF public funds into a private company of Mr Mdwaba, Thuja Holdings pursuant to a clearly unlawful agreement concluded between him, the UIF and the Department of Employment and Labour.
The Minister also removed Mdwaba from the position of chairman of Productivity SA on 22 September 2023, because when he concluded this agreement, he placed his private interests above and in conflict with those of Productivity SA. A clear examination of Mr Mdwaba’s project shows that, he sought to channel to his private company, the work that he was meant to promote, through Productivity SA and thus hijack the work of Productivity SA to advance his private interests in Thuja Holdings.
Finally, the Minister brought this application to stop Mr Mdwaba from making false allegations, that the Minister’s actions were not done for legitimate reasons but to advance a corrupt scheme in which, according to Mr Mdwaba, an alleged demand for the payment of 10% of the R5 billions was made to him by the Minister. These allegations of corruption are false and Mr Mdwaba, to date, has failed to provide any evidence to support them. He cannot produce any evidence because the allegations are false and highly defamatory of the Minister.
The Minister’s urgent application was first set down for hearing on 13 December 2023, but in order to ensure that Mdwaba was given the opportunity to respond to the Minister’s application, including provide the evidence to support his allegations of corruption against the Minister, the Minister agreed for the application to be postponed for hearing to 25 January 2024.
In terms of the order of 13 December 2023, Mr Mdwaba was ordered to file his answering affidavit Friday the 5th of January 2024. To date Mr Mdwaba, despite further indulgences given to him, has failed to file his answering affidavit.
Instead of filing his answering affidavit on 5 January 2024, Mr Mdwaba’s attorneys addressed a letter to the State Attorney dated 22 January 2024, as he did ask prior to 5 January 2024, demanding the production of a forensic report, on the investigation which the Minister commissioned into the conclusion of the unlawful agreement. The State Attorney for the Minister on the same day responded to the same, as was done on the 5th of January 2024 to the demand, and refused to accede to Mr Mdwaba’s demand, giving him the opportunity to respond to produce an answering affidavit. Despite numerous indulgences given to Mr Mdwaba to file his answering affidavit, he has failed to do so.
Despite the sensational allegations made in public by Mr Mdwaba against the Minister, Mr Mdwaba has spectacularly failed to support them. In typical diversionary tactics, he has resorted to an unacceptable litigation stratagem, in terms of which, he makes public allegations against the Minister but refuses to commit to giving an answering affidavit under oath in court proceedings, where he can be held liable for the crime of perjury. The Minister has specifically challenged Mr Mdwaba to submit evidence in his answering affidavit that support his allegations that the Minister’s decision not to implement the agreement is motivated by a corrupt scheme. Mr Mdwaba has failed to
do so.
On the eve of the hearing of this application on Wednesday, 24 January 2024 Mr Mdwaba opportunistically filed a rule 35 notice for the discovery of certain documents that do not prove his allegations of corruption. Ironically, the documents he seeks are contained in the affidavit of the Minister except the forensic report, which as far back as 5 January 2024, he had been informed would not be disclosed to him. Importantly, the Minister’s case against Mr Mdwaba is not based on the forensic report, which is being used in implementing internal controls in the Department, that the conclusion of this unlawful agreement revealed. All the allegations and the documents supporting the Minister’s case, are contained in the Minister’s application including why Mr Mdwaba was removed from his position as chairman of Productivity SA. He has failed to answer these and the inescapable conclusion for his conduct is that he has no answer to the Minister’s case and now seeks refuge in senseless and unjustified technical demands for documents.
Mr Mdwaba has therefore failed to file the answering affidavit to defend his claims against the Minister. That being the case, today, the Minister’s team would have succeeded to obtain the orders against Mr Mdwaba if the matter had been enrolled properly by the court registry.
The reason why the matter is not enrolled for hearing today, is because it has not been allocated to a Judge. As a consequence, and to resolve this unfortunate procedural setback for the resolution of the Minister’s case, parties met with the Deputy Judge President Ledwaba this morning, to ensure that the matter is properly allocated to a Judge. The result of this, is that the application, despite the Minister’s legal team being ready in all respects to make the Minister’s case, could not proceed today.
The Minister’s team sought the urgent hearing of this application despite Mr Mdwaba’s failure to give his answering affidavit. It is simply untenable that Mr Mdwaba is allowed to continue parading himself as a helpless victim of the Minister’s alleged corrupt conduct, when Mr Mdwaba steadfastly refuses to give evidence to support those false allegations.
Today, 25 January 2024, legal representatives of both parties met with the Deputy Judge President Ledwaba (DJP), who has set the matter down on a special allocation for hearing on Friday, 2 February 2024. He has also directed that Mdwaba must file his answer, together with condonation for late filing of the answer on Monday, 29 Jan 2024. The Minister was given until Wednesday, 31 Jan 2024, to file a replying affidavit and supplementary heads of argument if any. Mdwaba must file his heads of argument by the same day 31 Jan 2024. The DJP will allocate the matter to a judge.
The Minister is happy that we managed to get an early allocation and has instructed his team to ensure that this application is properly enrolled, so that it is heard on the merits because he is confident that the Court will vindicate his rights. Importantly, the Minister assures the public that he has acted with probity and expeditiously, to stop the unlawful payment of R5 billions of public funds to Mr Mdwaba. His application sets out with commendable factual and legal detail, why the agreement of the UIF and Mdwaba does not meet the legal requirements for a valid and enforceable agreement.
Media enquiries: Mr Trevor Hattingh, Director: UIF Communications - Cellphone: 067 410 4099, Email: trevor.hattingh@labour.gov.za
Further enquiries: Lumko Mtimde, Special Advisor to the Minister – 066 587 4257, Email: lumko.mtimde@labour.gov.za
