DRUGS PROBE: COURT STOPS HEALTH OFFICIALS’ DC, GOVT CONSENTS

MBABANE - The PS in the Ministry of Health has been interdicted from continuing with the disciplinary actions against Principal Procurement Officer in the Ministry of Health Sincedile Magwaza and Deputy Director Pharmaceutical Fortunate Bhembe.

The duo approached the court of equity on an urgent basis, after they were served with letters titled  ‘Formal charges of misconduct’, wherein certain charges were being preferred against each of them. The consent order, which was endorsed by Industrial Court Judge Muzikayise Motsa yesterday, is interdicting the principal secretary (PS) from proceeding with the disciplinary action against Magwaza and Bhembe. “The second respondent (PS) is hereby interdicted and restrained from continuing with the disciplinary process that he has instituted against both applicants in contravention of the orders of court granted on November 27, 2023 (in respect of Fortunate Bhembe) and October 31, 2023 (in respect of Sincedile),” reads part of the interim court, which is returnable on February 19, 2024.

Granting

When the matter was called yesterday government Lawyer Vikinduku Manana informed the court that he was consenting to the granting of the interim order. He said the respondents (CSC and the PS) would be filing an explanatory affidavit but undertook that they would comply with the court order. Manana briefly explained to the court that it was the PS who charged the applicants, but an error occurred when they charged everyone. He said they were supposed to only charge an implicated officer who was about to retire, not everyone including the applicants (Magwaza and Bhembe). Judge Motsa, in passing, said it was surprising that in this matter, every time consent orders were issued but the parties found themlseves in court on the same issues.

The medical drugs crisis investigation has reportedly led to nine senior officials in the Ministry of Health being charged. The investigation is with regard to irregularities relating to the procurement, in particular the acquisition and distribution of medical drugs and supplies to public health institutions. The common charge among the nine officers is misconduct. Each of the officers was charged separately. Meanwhile, in their application the applicants (Magwaza and Bhembe) contended that the action of the PS and the CSC of instituting disciplinary action against them was in contravention of a court order that was issued by the Industrial Court in their favour on October 31, 2023. On October 31, 2023, Magwaza and Bhembe obtained an interim order stopping the forensic investigation, specifically against them. This means that this is the second time they successfully approach the Industrial Court. Notably even the order that was issued on October 31, 2023, was by consent of both parties.

In the present application, the applicants argued that the actions of the PS had allegedly been committed deliberately and mala fide.  It was their averment that the PS was aware of the orders. “The PS is aware of the orders of court, they were granted at his instance, his attorney motivated for the grant of the interdicts, and he, therefore, has no reason to act in defiance of such order,” argued the applicants. According to the applicants it was always a matter of grave concern when government officials, such as the PS, allegedly openly defied court orders. They contended that, given the imminence of the disciplinary action, the interim interdict that they were seeking in their  application was aimed at preventing the harm that would befall them in the event the disciplinary action against them was pursued.

Application

“Our basis for coming to court in the main application was to interdict the very disciplinary process and to have it declared unlawful. While those proceedings are pending before court and in total disregard of the fact that the matters are pending before court, the respondents are now acting in a manner that is designed to undermine the authority of the court and to subvert the court process. To compound matters, they are also acting in defiance of orders of court,” argued the applicants. They told the court that in view of the urgency of the situation, they could not afford to launch their application in the ordinary course. “We advised that if this application were to be launched in the ordinary course, it is likely only to be heard in about three months, given the fact that the courts are presently on recess until the end of January 2024, and the stipulations in the rules of court would prevent an early determination of the matters,” submitted the duo. It was their submission that in the meantime, the second respondent would allegedly proceed with the disciplinary action, which was precisely what they sought to prevent by way of the interim interdict. The applicants were represented by Senior Lawyer Zweli Jele of Robinson Bertram.

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