Times Of Swaziland: AG ORDERED: GIVE BHEMBE, MAGWAZA  FUNDUZI TENDER  DOCUMENTS

AG ORDERED: GIVE BHEMBE, MAGWAZA  FUNDUZI TENDER  DOCUMENTS
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Kwanele Dlamini on 24/08/2024 07:18:00


MBABANE – AG Timothy Matsebula has been ordered to provide Sincedzile Magwaza
and Fortunate Bhembe with documents relating to the appointment of Funduzi
Forensic Services (Pty) Ltd for the drugs shortage investigation.
Magwaza and Bhembe are the two senior health officials who approached the
Industrial Court in June 2023, to challenge their appearance before Funduzi
Forensic Services investigators during the investigation of the circumstances
around the shortage of medical drugs in public health institutions. Magwaza is
the Principal Procurement Officer in the Ministry of Health and Bhembe is the
Deputy Director-Pharmaceutical Services. After they filed their founding
affidavit, the respondents (Ministry of Health and its principal secretary,
auditor general (AG) and Funduzi) filed answering papers.
However, according to Bhembe and Magwaza, certain documents referred to in those
answering papers were not attached. Bhembe and Magwaza demanded the papers
before they could file their replying papers. Since June 2023, this has not
happened, except for some documents filed by Funduzi. Yesterday, Judge Abande
Dlamini of the Industrial Court ordered the AG and Funduzi to furnish Bhembe and
Magwaza with the necessary documents within 10 days of the judgment. The court
condemns the senior health officials for not filing their replying affidavit
timeously. The court also ordered that after filing of the requested documents,
Bhembe and Magwaza should file their replying papers within seven days.
Requesting
When the applicants (Bhembe and Magwaza) received the answering papers from the
respondents on June 22, 2024, their attorney, Zweli Jele of Robinson Bertram,
wrote to the AG requesting the following documents:
(a) the contract that was concluded between the AG and Funduzi, (b) the
application that was made by the AG that facilitated the appointment of Funduzi
(in terms of Section 6 of the Procurement Act) and (c) the shortlist of the
tenderers who were submitted by the AG in fulfilment of the limited tendering
procuring method.
This request was in terms of Regulation 39(1) of the Public Procurement
Regulations 2020.
The applicants also wanted (d) the justification that was submitted by the AG to
the Tender Board in accordance with Regulation 39(5) and (e) the submission that
was made to the Tender Board in relation to the procurement of Funduzi to carry
out the forensic audit.In respect of Funduzi, Bhembe and Magwaza requested the
annexure which was apparently referenced as attached in the answering affidavit,
deposed to by one Thulani Mabuza, the statement purportedly filed by one Charles
Kwezera and a copy of the contract concluded between Funduzi and a certain Boyce
Mkhize.
These are the documents that the AG and Funduzi have been ordered to furnish the
applicants.The applicants sought to compel the AG and Funduzi to produce the
requested documents to assist them in their replying affidavit to address the
respondents’ allegations as contained in their (respondents) answering
affidavits.
Affidavit
The court had issued a timeline that Magwaza and Bhembe should file their
replying affidavit by close of business on June 27, 2023, which is more than a
year ago. When the matter was heard on May 22, 2024, the court was informed that
Funduzi had complied with some of the applicants’ request, but some documents
were still outstanding.The AG and Funduzi were opposed to the applicants’
application. In so doing, they raised points of law, such as that the matter was
prematurely before court as the AG was still awaiting the court to make a ruling
on whether it had jurisdiction to deal with the matter.
They also argued that the documents sought were not in their custody. At the
start of the arguments, Jele, on behalf of the applicants, informed the court
that Funduzi had produced some of the documents, but there were still two
critical documents not yet produced, despite that they had referred to them in
their answering affidavit. Judge Dlamini, on the issue of the jurisdiction of
the Industrial Court, said the court considered that once all the pleadings had
been filed in its record, it was then that it would consider whether it has the
requisite jurisdiction to hear and determine the matter on the merits.
The judge further said the refusal by the respondents to avail the requested
documents and annexures amounted to what is commonly referred to as ambush
litigation. “This arises where one of the parties in a court case conceals
from the opposing side evidence, with the result that there is little or no
chance for that opposing litigant to come up with an adequate defence or
response to allegations against him or her in the pleadings. “I point out that
fairness is paramount in any proceeding in this court, and trial or litigation
by ambush will not, under any circumstances be countenanced by the court because
it is deplorable,” said Judge Dlamini.
Meanwhile, Judge Dlamini noted that three judges recused themselves from this
matter. The matter came to court under a certificate of urgency. It has been on
the court roll for well over a year.“In fact, it has been listed as pending in
this court’s roll for more than a year now. In the year that it has remained
unresolved, it has been to at least three of my brothers, who have all, for
various reasons, recused themselves from hearing and determining the dispute of
the litigants in these proceedings.
Resolve
“As a concern on the side, I point out that in my more than 14 years on the
bench of this court, it is surely a first of its kind that we have, not one or
two, but three judges deciding that they cannot play any role in assisting the
litigants resolve their dispute. “There have been threats against life and
various other reasons that have seen the other judicial officers decide that
they cannot sit in this matter. This is surely a concerning state of affairs,
and cannot be taken lightly,” said Judge Dlamini. He said judges are expected
and required to approach each case with an open mind and render unbiased
judgements. He said they are required to be impartial and non-partisan.
“Therefore, as judges, we have to look over our shoulders before deciding a
case because of fear, we are in trouble, deep trouble. “This can never be
acceptable, and should be nipped in the bud before it gets out of control.”