Former National Social Security Authority chairman Robin Vela got a reprieve yesterday after the Constitutional Court quashed a Supreme Court ruling upholding the report from BDO Chartered Accountants that fingered him in underhand deals at the state-run pension fund.
The Supreme Court granted an appeal by BDO Chartered Accountants against a 2020 High Court judgement that quashed its audit report against Vela, a decision he perceived as a violation of his rights.
Vela disagreed with the Supreme Court ruling, saying its decision deliberately avoided dealing with the High Court analysis of the Constitution and the Administrative Justice Act.
He criticised the court judgment, saying the judges ignored that the Audit Office Act allowed the delegation of powers given in the Constitution to the Auditor General and she could thus appoint a firm of chartered accountants, as she had done with BDO, to do a forensic investigation.
Vela questioned the Supreme Court's conclusion that what BDO did was not the exercise of administrative power.
He also contended that the findings of incompetence, malice and incoherence by the High Court had not been interfered with, so still stood.
Vela took the matter up to the Constitutional Court seeking a definitive pronouncement on delegation of Constitutional powers by the Auditor General and whether BDO acted under the Auditor General's authority and whether the investigation constituted reviewable action.
And the full bench of the Constitutional Court yesterday unanimously upheld Vela's contentions and overturned the 2022 Supreme Court judgment and ordered a fresh hearing before a set of different judges.
"As agreed to by the full bench of this court, the operative part of the judgement, in the exercise of the court's powers as stated in section 19 of the court's rules, the judgement in the supreme court in SC 61/22 be and is hereby set aside," said Justice Paddington Garwe reading the operative part of the Constitutional Court judgement.
"The matter is remitted to the Supreme Court for a hearing (afresh) before a different panel of judges".
In 2022, a three-judge panel of Justice Chinembiri Bhunu, Justice Nicholas Mathonsi and Justice George Chiweshe allowed BDO's appeal on the basis that the accounting firm was not an administrative authority and therefore its report could not be revised.
Retired Justice Webster Chinamora, then a High Court judge, had dismissed the BDO report on NSSA as biased, incompetent and riddled with inaccuracies.
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He also made a finding that the forensic investigation and the audit report produced by NSSA were reviewable.
Justice Chinamora went on to review the conduct of BDO when producing the forensic audit report and concluded that the process leading up to the production of the audit report was fraught with bias because there was unequal treatment of Vela and two ministers allegedly involved in corrupt activities.
Further, Justice Chinamora ruled that the failure to mention the impugned ministers' names in the forensic report amounted to gross incompetence.
The Supreme Court, in its judgment, found that BDO's conduct and processes in that regard were not subject to judicial review and upheld the appeal with costs of suit.
However, the court did not touch on the substantive issues such as BDO's alleged incompetence, malice and incoherence as ruled by the High Court.
Vela's lawyer Advocate Method Gatsheni Ndlovu welcomed the apex court decision that gave life to the High Court decision as it stands.
