Judgment has been reserved in the application for leave to appeal a Special Tribunal ruling in favour of adding more companies to the Special Investigating Unit's (SIU's) legal bid to recover money which was allegedly siphoned from the government's tender with Digital Vibes.

The Special Tribunal had ordered that five of the six companies be joined to the SIU's recovery bid.

On Monday morning, lawyers for the companies argued that the SIU used the wrong test in the joinder application and that another court might disagree with the tribunal's finding.

The companies are All Out Trading (Pty), Tusokuhle Farming, Cedar Falls Properties, Mateta Projects, and Sirela Trading.

Cedar Falls Properties had May Mkhize, the wife of former health minister Zweli Mkhize, listed as its sole director. Tusokuhle Farming was linked to Dedani Mkhize – the couple's son.

Mateta Projects was accused of being the main character in the alleged money laundering enterprise, which received initial payments from Digital Vibes.

Those proceeds were later paid over to Sirela Trading; a company linked to Protus Sokhela – an associate of the Mkhize family.

Proceeds from Sirela were then distributed to entities related to the Mkhize family, News24 reported. Advocate Greg Harpur SC, for Tusokuhle Farming and Sirela Trading said the SIU relied on the Supreme Court of Appeal judgment in the case of the Johannesburg Society of Advocates (JSA) vs Nthai.

In that case, the JSA had sought leave to intervene in former advocate Seth Nthai's case. The SCA agreed they had the standing to intervene in the matter.  

However, Harpur told Judge Lebogang Modiba that applying that test in this matter was "inappropriate".

He said there was no reason for the tribunal to join his clients at the instance of the SIU. He also argued that Mateta projects had repaid the money in question to the SIU.

"So, there is no point in proceeding further against [his clients] [and] there is no constitutional remedy unless there is a recognised cause of action.

"He also added that his clients did not receive money from the government. 

"They received it from a bank, and the bank was Mateta's bank. They did not receive it from the government. The money is not reclaimable at the instance of the SIU because the money that was received by [his clients] did not come from the government. It comes from someone else, and that, really, is the end of the case, and with respect, another court reasonably would come to that conclusion for the simple reason that that's the law," he said.

The lawyers representing the other companies aligned themselves with Harpur's argument.

In heads of argument, Advocate WAJ Nicholson SC for All Out Trading and Sithokozile Mkhize said Judge Modiba, "... committed a series of material misdirection in fact and in law which were compounded by her failure to have any regard to the limited powers of the SIU to claim compensation and the limited powers of this tribunal to award compensation".

In March, the SIU was accused of being "overzealous" in its pursuit to recover funds which were allegedly paid to companies linked to Zweli Mkhize, his relatives, and close associates, News24 reported.

The SIU had argued that it should be allowed to recover costs from six companies which had allegedly received payments from Digital Vibes.

In her judgment, Modiba said whether the repayment by Mateta Projects, "... absolves the proposed respondents from liability, the payments were made in the ordinary course of business, and/or the proposed respondents are innocent of the flow of funds between NDOH (National Department of Health) and Digital Vibes stand to be determined in the review application once the issues between the parties are fully ventilated".

She said the proposed respondents had presented "inconsistent versions" regarding the basis for Mateta Projects' repayment to the SIU. 

"Given that Sirela Trading only received R3 795 000 from Mateta Projects, it does not make business sense why Mr Sokhela advanced to Mateta Projects over R7.7-million, more than Mateta Projects received from Sirela Trading. The purported refund of the rental in respect of [the] lease of Mr Sokhela's farm and grazing fees, given that Mr Mthethwa has had [the] benefit of the lease for almost two years and that his cattle have grazed on Mr Sokhela's farm also does not make business sense," Modiba said.

"The loss to NDOH [the national department of health] which the SIU seeks to recover in the review application is R150-million and not limited to the R10.6-million Mateta Projects received from Digital Vibes. Sirela Trading is the source of the funds Mateta Projects repaid to the SIU, the basis of which, prima facie, is devoid of logic and business sense; none of the other proposed respondents have repaid to Mateta Projects the amounts they received from it."

She said the SIU was entitled to recover money from the companies.