HEALTH FORENSIC CONTRACT HAS PRIVILEGED INFO – AG

MBABANE – The AG contends that the contract between his office and Funduzi Forensic Services contains privileged information and its unavailability will not hinder the two senior health officials from filing their replying papers in court.

The auditor general (AG) made this averments in his replying affidavit in the matter where the Principal Procurement Officer in the Ministry of Health, Sincedile Magwaza and Deputy Director-Pharmaceutical Services Fortunate Bhembe want to be furnished with, among other documents, the contract authorising Funduzi Forensic Services to conduct the forensic investigation. Funduzi Forensic Services is the local company that was contracted by government to conduct an investigation into irregularities relating to procurement, in particular the acquisition and distribution of medicine to public institutions. Among the documents, the duo is demanding from the company a copy of an affidavit or statements made by Charles Kwezera. Kwezera is the Zimbabwean national, who was part of the investigation panel. He is alleged to have demanded money from Magwaza and Bhembe to purportedly compile a ‘favourable report’ that would exonerate them. His services were reportedly terminated following the allegations against him.

Agreement

It is alleged that he demanded a sum of E487 000, which was subsequently lowered to E225 000, in order to ‘exonerate’ her in the event she was guilty. The duo also want to be furnished with a copy of the agreement that was concluded between Funduzi Forensic Services and Kwezera. Among the documents, the applicants (Magwaza and Bhembe) want the company to provide their attorneys with a copy of a contract that was concluded between it and Advocate Boyce Mkhize. Mkhize reportedly led the investigators. The applicants also want the court to direct him to furnish them or their attorney with his work permit. They prayed that the company should be directed to provide them with the documents within 24 hours upon being served with the application.  

In his replying affidavit, Auditor General (AG) Timothy Matsebula informed the court that the documents that were being sought, pertaining the procurement standards and procedures, were not in custody of the respondents. Respondents in the matter are the minister of Health, principal secretary (PS) in the Ministry of Health, AG and Funduzi Forensic Services, which is the company that was mandated to conduct the forensic investigation. Matsebula argued that the order sought against the respondents would not be enforceable. He informed the court that the copy of the contract between the office of the AG and the company contained privileged information and its unavailability would not hinder the applicants from filing their replying affidavit. In his answering affidavit, the AG only annexed the first page of the contract between his office and Funduzi Forensic Services. “No pertinent information has been suppressed by the respondents. The applicants can as well reply without the documents,” he argued.

Permit

In her supplementary affidavit, Magwaza said she was also aware that Mkhize was a South African national and, therefore, would have required to have a valid permit in order to be able to carry out work at the behest of the AG. These allegations’ veracity is still to be tested in court and the respondents are yet to file their responding papers. Magwaza informed the court that to the best of her knowledge, both of these investigators allegedly did not have permits. The applicant submitted that in some correspondences, the AG referred to the investigating panel as forensic auditors. “Even if they are not forensic auditors, by virtue of the fact that they have been appointed in accordance with the provisions of the Audit Act, they were obliged to register with the Eswatini Institute of Accounts in accordance with Section 12 of the Accounts Act of 1985,” she argued.  

Magwaza contended that the AG had allegedly not complied with the legislative prescripts. “I emphasise once again that the focal person in all the correspondences to us was Charles Kwezera.  I have annexed emails from one Fumene Mkhonta to Bhembe, which are copied to Charles and the principal secretary in the Ministry of Health,” submitted the applicant. This, according to Magwaza, illustrated the central role of Kwezera in the whole matter. She submitted that in light of the multiple statutory alleged violations purportedly committed by the respondent, any actions they had taken were stepped in illegality and nothing done by them might be valid. The applicants recently obtained an interim order stopping the investigation against them but government has entreated the court to discharge it. The matter is still pending in the Industrial Court and the respondents are yet to file their papers. The applicants are represented by senior lawyer Zweli Jele of Robinson Bertram and the matter is pending before court.

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