Times Of Swaziland: GOVT WANTS JUDGE RECUSAL FROM DRUGS PROCUREMENT CASE

GOVT WANTS JUDGE RECUSAL FROM DRUGS PROCUREMENT CASE
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Kwanele Dlamini on 05/02/2024 08:44:00


MBABANE – Government says it has not been allowed to present its case fully in
court in the medical drugs and supplies procurement case.
As a result, government applied for the recusal of Industrial Court Judge
Muzikayise Motsa from presiding over the matter. The Principal Secretary in the
Ministry of Health, Khanyakwezwe Mabuza, alleged that Judge Motsa was not
regulating the proceedings in a fair manner. In this matter, Principal
Procurement Officer in the Ministry of Health, Sincedile Magwaza, and Deputy
Director-Pharmaceutical Services Fortunate Bhembe, took government to court in a
bid to stop the forensic investigation against them into the issue of
procurement of medical drugs. The investigation involved Nikilitha Consultancy,
Clariscent Consulting and Funduzi Forensic Services (Pty) Ltd.
Urgent
When they approached the court on an urgent basis in June 2023, Magwaza and
Bhembe divided their prayers into Part A and Part B. In Part A, they want
Nikilitha to be interdicted from requiring them to appear before the
investigation panel constituted by individuals who were previously part and/or
associated with the entities known as Nikilitha and/or Claricent and Funduzi. In
Part B, they want the court to declare that the forensic investigation is
tainted with illegality, fraught with multiple irregularities and that its
outcome had been pre-determined. The applicants (Magwaza and Bhembe) are also
praying for an order declaring that the decision by the auditor general to
appoint a forensic investigation team is tainted with illegality for want of
compliance with the procurement laws of the Kingdom of Eswatini. They alleged
that the forensic investigators failed to follow fair and lawful processes in
the discharge of their functions and that the entire investigative process to
the date of the applicant be declared unlawful and/or irrational and invalid.
Part A was decided in some sort of piecemeal fashion in that the government
consented to the relief sought and the other respondents (Nikilitha and/or
Claricent and Funduzi) opposed the relief sought. The latter raised points of
law on jurisdiction, which is still to be decided. Government argued that it was
not receiving a fair trial. One of the reasons, according to the Health PS, for
the recusal application, was that Judge Motsa had allegedly mero motu (of
one’s accord) revived the interim order granted in favour of Bhembe and
Magwaza concerning Part A of their prayers. This, according to Mabuza, was
unfair on the part of the judge. He said without the revival of the interim
order, Part A would have been disposed of to the benefit of government and the
other respondents.
The PS said it was not unreasonable to harbour an apprehension of bias on the
part of the judge. “The impression created is that the decision to revive the
rule nisi was intended to assist the applicants. On this ground alone, I submit
that the learned judge ought to disqualify himself from hearing the matter,”
Mabuza submitted. The veracity of these allegations is still to be tested in
court. Bhembe and Magwaza are yet to file their answering papers to the recusal
application. The duo is represented by Zweli Jele of Robinson Bertram while
Principal Crown Counsel Vikinduku Manana appears for government. Government has
instructed a South African advocate for the recusal application. Funduzi is
represented by Kwanele Magagula of Sithole and Magagula Attorneys.
The PS also argued that from inception, the respondents have not been allowed to
present their cases fully. He alleged that the court failed to regulate Part A
in a fair manner. Mabuza told the court that the matter was set for hearing on
June 16, 2023, if there was no opposition from the respondents. However, he said
they filed notices to oppose, which meant that the matter would have to be heard
on a different future date. “It proceeded to hear the application without the
answering affidavits of the respondents. The answering affidavits could not be
filed due to the unreasonably truncated time periods set by the applicants.
“Interestingly, the matter ought not to have been heard on June 16, 2023, in
the first place, because the applicants’ notice of motion had indicated that
the matter will only be heard in June if there was no opposition, Mabuza said.
Ventilation
He stated that despite this, the court proceeded to hear the matter without a
full set of papers for the proper ventilation of the issues between the parties.
The PS said he was aware that the government had initially consented to Part A,
but the decision could not have been properly taken considering the short period
afforded to them to consider the matter. According to Mabuza, the court ought to
have postponed the matter and issued directives for the filing of answering
affidavits in relation to Part A. “This would have been a fair ruling under
the circumstances and it would have been in line with the notice of motion of
the applicants which stated that the matter would only be heard on June 16,
2023, if there was no opposition. These submissions are made considering the
principle that a court is not an umpire but must actively regulate proceedings
in a fair manner to all the parties.”
The other ground for recusal is that the judge had allegedly consistently
refused to hear the point on jurisdiction raised by the respondents. The point
of jurisdiction, Mabuza submitted, was pertinently raised at the first hearing
of the matter on June 16, 2023, by the private respondents (Nikilitha and/or
Claricent and Funduzi). “In his judgment on the Rule 30 application, at
paragraph 13, the learned judge acknowledges that the point was raised. However,
he does not mention what his ruling was on the point. That is because he never
considered the point,” further argued Mabuza.
Paragraph 13 of the Rule 30 application read: A notice to raise points of law
was filed from the bar on behalf of the 6th respondent (Funduzi) with the object
of challenging the jurisdiction of this court in this matter and the grant of
any order sought by the applicants was opposed until the point of law was heard
and determined.” Mabuza submitted that the point on jurisdiction ought to have
been considered first because it was definitive and dispositive of the matter.
He also stated that the court also had a duty to raise the question of
jurisdiction even if none of the parties had raised it because a court must have
jurisdiction for its judgment or order to be valid. He said if a court did not
have jurisdiction, its judgment or order was a nullity. The matter is pending in
court.