IF FORENSIC INVESTIGATION INTERDICT PERSISTS, LOSS OF LIVES POSSIBLE - AG

MBABANE - “If the court’s interdict into the forensic investigation persists, it will lead to possible loss of life.”

This assertion was made by the Auditor General (AG), Timothy Matsebula, in his answering affidavit, where government wants the Industrial Court to discharge the interim order stopping the forensic investigation into irregularities relating to procurement, in particular the acquisition and distribution of medicine to public institutions against two senior health officials. The interim order was granted after the two health officials, Principal Procurement Officer in the Ministry of Health Sincedile Magwaza and Deputy Director-Pharmaceutical Services Fortunate Bhembe approached the Industrial Court on an urgent basis, where they made a hue and cry about the whole exercise, which they claimed was tainted. The forensic investigation was instituted by the AG following a clamour over the shortage of drugs in the country’s health institutions.

Medication

In his answering affidavit, Matsebula brought it to the court’s attention that injury that stood to be suffered by the government, the innocent taxpayer and ordinary liSwati, who will not get medication and tablets outweighed that of the applicants (Magwaza and Bhembe).  He said the duo of Magwaza and Bhembe were purportedly refusing to account for their conduct in their offices. “The drugs kept at the Central Medical Stores (CMS) have a lifespan and they will expire during the interim period, causing loss amounting to millions of Emalangeni and possible loss of life, yet the applicants can seek redress with the Conciliation Mediation and Arbitration Commission (CMAC), the courts and be compensated if they are not guilty in any manner,” contended the AG. According to Matsebula, the forensic exercise has been contaminated and was out there in the public domain. He went on to tell the court that the forensic exercise would have to go back to the drawing board and reconstituted with a revised mandate. Matsebula argued that, by its very nature, a forensic exercise was confidential.

Information

“It is the applicants’ (Magwaza and Bhembe) calculated move to bring the exercise into disarray and have confidential information displayed to the public,” submitted the AG. It was further Matsebula’s contention that the office of the AG could not be interdicted from performing its mandate. He argued that, should the Industrial Court run to the applicants’ rescue by interdicting the process, the office of the AG might as well fold its arms as no investigation could ever be conducted in future with implicated employees rushing to court to interdict an investigating process prematurely. The AG also denied that the whole panel was tainted as alleged by the applicants. “The only person the applicants have a problem with is Charles Kwezera, whom from their admission and evidence brought before court they have been willingly playing along with his deeds,” argued the AG.

He informed the court that Kwezera had since been removed from the investigating panel, thus the rest of the panel members had not engaged in any improper conduct to deserve a whole termination of their mandate. The entire process, according to the applicants, has been compromised and they should not be required to participate in same. The government, through its lawyers, had previously raised points of law in the matter, where it argued that the Industrial Court did not have jurisdiction to hear such matters. It was government’s further argument that the order that was granted by the court would collapse the healthcare system. The investigation is conducted by Nkilitha Consultancy, Clariscent Consulting and Funduzi Forensic Services.    The interim order that was granted interdicts and prohibits government from performing and/or carrying out the investigation against the applicants. The court further interdicted Nkilitha Consultancy from requiring the applicants to appear before a panel constituted by individuals who were previously part of and/or associated with entities known as Nkilitha Consultancy and/or Clariscent and Funduzi. The interim order was returnable on Friday and government filed an application to anticipate it.

Information

Anticipating an interim order is approaching the court and filing the necessary papers earlier than the set return date if the order granted is prejudicial. Before the matter was heard on Friday, the parties went to Judge Muzikayise Motsa’s chambers. Government representatives purportedly relayed to the judge their desire to have the matter heard in camera due to the confidentiality of some of the evidence to be adduced. Government is represented by Principal Crown Counsel Vikinduku Manana. Jele of Robinson Bertram appears on behalf of the senior health officials. Kwanele Magagula of Sithole and Magagula Attorneys represents Funduzi Forensic Services.

After the parties returned from the judge’s chambers, they proceeded to open court for the hearing of an application filed by the senior health officials in terms of Rule 30 of the Rules of Court, in which they argued that the application to anticipate the interim order was irregular and should be dismissed with costs. Jele argued on behalf of Bhembe and Magwaza that the interim order that was issued by the court was by consent of the parties after which the matter was postponed to July 6, 2023. Jele submitted that on Wednesday he was served with a notice to anticipate the interim order, and this particular notice was set down for hearing on Friday.

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