AG ORDERED: GIVE BHEMBE, MAGWAZA FUNDUZI TENDER DOCUMENTS

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.”

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