Times Of Swaziland: SWAZIPHARM WITHDRAWS E52M CLAIM AFTER GOVT DEMANDS PROOF SWAZIPHARM WITHDRAWS E52M CLAIM AFTER GOVT DEMANDS PROOF ================================================================================ Mbongiseni Ndzimandze on 07/12/2023 13:45:00 MBABANE - A day after government made five demands, SwaziPharm Wholesalers (PTY) Limited withdrew its summons, wherein it was demanding E52 million from the former. SwaziPharm Wholesalers (PTY) Limited, which offers various products, services, pharmaceuticals, disposables and devices had taken government to court, demanding a sum of E52 901 377.13. On Tuesday, government filed a request for further particulars, which contained the five demands to SwaziPharm. In respect of the monies demanded by SwaziPharm, government requested a copy of the tender certificate or approval to supply the medical goods to the Ministry of Health, amounting to E12 857 896.56 and E39 797 095.59 respectively. Requested Government also requested copies of the delivery invoices duly signed by a representative of the Ministry of Health and purchase orders for the medical goods. It was further government’s demand to SwaziPharm that it should provide proof of payment of monies towards settlement of goods procured under the two claims if any relating to the tender approval of such goods. Lastly, SwaziPharm was called upon to provide proof of a bank guarantee to perform in terms of the tender. Yesterday, which was hardly a day after government had made the demand for further particulars; SwaziPharm, through its attorneys from Robinson Bertram, filed a notice of withdrawal of the summons. Not only did the company withdraw the application but it also tendered wasted costs. The reasons for the withdrawal are not stated in the notice for same. “Be pleased to take notice that the plaintiff (SwaziPharm Wholesalers (PTY) Limited) hereby withdraws the summons dated February 2023 application against the defendant and tender wasted costs,” reads part of the notice of withdrawal, dated December 6, 2023. SwaziPharm Wholesalers had made two claims. In the first claim it was demanding payment in the sum of E12 857 896.56. In the withdrawn summons, the plaintiff claimed that the aforementioned amount was in respect of the balance owing on medical goods and supplies, purportedly sold and delivered by the company to various medical facilities under government at the latter’s special instance and request, between June 2016 and December 2020. The amount, according to SwaziPharm Wholesalers, was now due, owing and payable at nine per cent interest per annum. In the second claim, SwaziPharm Wholesalers was demanding a sum of E39 797 095.59 from government. The money, according to the company, was for goods it sold and delivered at government’s special instance and request, between June 2016 and December 2020. The veracity of these allegations is still to be tested in court. Matter In total, the amount demanded by SwaziPharm Wholesalers from government was E52 654 992.15. In the letter of demand, SwaziPharm Wholesaler’s representatives stated that the supply of goods was pursuant to orders that were placed by the Ministry of Health. The Ministry of Health, as per the company, purportedly undertook to make payment for each invoice on delivery of the goods and at least not later than 90 days thereafter. According to SwaziPharm Wholesalers, the first tranche of the claim was in respect of goods sold and delivered to the Ministry of Health, between 2016 and 2020. “Our client was precluded from pursuing payment for the invoices in respect of the goods by Eswatini Government, ostensibly on account of undertakings made by various government officials and the advent of the COVID-19 pandemic,” reads part of the letter of demand dated September 19, 2023. The total amount that was purportedly due and payable, according to Swazi Pharm Wholesalers (PTY) Limited for this period, was the sum of E12 857 896.56 plus interest of nine per cent per annum, calculated from the date of each outstanding invoice to the date of final payment. Delivered Through its attorneys, the company stated that the second tranche of the claim was in respect of goods sold and delivered to the Ministry of Health, between the period 2021 up to September 2023. The matter had been set down for arguments on Friday, but the latest development means that same would not proceed. In its papers, government had contended that the plaintiff was in breach of Rule 19(2) of the High Court by demanding that the defendant (Eswatini Government) file notice of intention to defend without seeking and obtaining leave of court to decrease the number of days afforded government in excess of 20 days. Assistant Attorney General (AAG) Mbuso Simelane, in his heads of argument, averred that, without seeking leave of court, the plaintiff issued summons for a whopping combined figure of E52 654 965.55 for medical goods and supplies sold and delivered to government. “In terms of Rule 19(2) of the High Court Rules of 1954, the government is given an excess of 20 days to file a notice to defend. The plaintiff gave government 14 days, which is prejudicial on the basis that the amount is not supported by any documents thus not liquidated or showing that the plaintiff lawfully performed its part in terms of government procurement laws,” contended the AAG. Prejudice It was further his submission that government suffered immense prejudice with the shortened time lines in order to consult. He said a declaration might be filed but this was not a matter that required that simple summons be issued with a copy of the contract agreement. “In the premise this is a good case to deem the simple summons irregular by not complying with the timelines. This is not so much about prejudice but following the due process of the rules,” Simelane argued. He highlighted that government had requested further particulars after the Rule 30 was filed and there was nothing untoward about that as the above rule did not bar anyone from filing anything after it (Rule 30) had been raised and served. The assistant AG argued that in any event of requesting further particulars without a notice to defend having been filed, did not take the matter to finalisation.