ACC: Drug funds misappropriation was deliberate

MBABANE – The ACC says the apparent financial loss to government due to the misappropriation of medical drugs funds appears to be deliberate.

This, according to the Anti-Corruption Commission (ACC), makes it unlawful and prima facie (based on first impression) criminal. The ACC made this submission in its heads of argument in its appeal against the refusal by the Chief Justice, Bheki Maphalala, to issue warrants of arrest for a prominent businessman and several health officials, who are allegedly involved in the misappropriation of funds for medical drug procurement.

The commission is appealing the two judgments handed down by the chief justice. The judgments being appealed are dated June 16, 2025 and September 2, 2025.

The heads of argument allege that the chief justice erred in finding that the commission had failed to substantiate its allegations and, as a result, did not establish a prima facie case, which is a necessary requirement under Section 13(3)(c) of the Prevention of Corruption Act, 2006, for the issuance of warrants.

The ACC submitted that the financial loss and prejudice suffered by the Government of Eswatini and the Ministry of Health due to the alleged procurement irregularities appear to be deliberate and/or form part of a pattern and is, as a result, unlawful and prima facie criminal in nature, particularly in the absence of any explanation by the parties involved.

This assertion is said to frame the alleged irregularities not as simple administrative errors, but as potentially criminal acts requiring further legal proceedings.

The heads of argument detail several specific instances of alleged financial prejudice and irregularities including a shortfall in drug delivery amounting to E2 183 941.90.

The ACC argued that the High Court erred in finding that the allegations concerning the shortfall in drug delivery were unsubstantiated. The ACC contended that it clearly demonstrated how this shortfall was accumulated in its founding affidavit.

The appeal highlighted the documentary evidence presented in the form of an Avapharm invoice (number AVPHINV0001) dated December 30, 2019, for E 132 570 516.70 several memoranda submitted to the accountant general recommending/requesting payment of the invoice and evidence purportedly showing the drugs actually delivered by AvaPharm, which allegedly consequently established the E2 183 941.90 shortfall.

The ACC submitted that the chief justice should have stated the reasons why this evidence was deemed lacking or insufficient, in the alternative to his finding.

The appeal also concerns an alleged overcharge, where Avapharm purportedly charged E98.80 for a drug called Tenofvir/Lavidudine/Dolutegravir 300/300/50mg 30s, despite the agreed price with the Ministry of Health being E98.75, according to one of the annexures.

The overcharge of 0.5 cents per unit for a quantity of 1 099 900 drugs resulted in a total alleged financial prejudice of E54 995.

The heads of argument asserted that all parties involved in the transaction were, or ought to have been aware of the overcharge.

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ACC questions chief justice’s warrant refusal reasoning

MBABANE – In refusing to issue the warrants of arrest, the chief justice’s provided reasons allegedly do not disclose in what respect the ACC failed to establish the elements of the offence of fraud or theft.

The Corruption Act requires an investigator, when seeking an apprehension warrant from a judge in chambers, to establish a prima facie case. In its heads of argument, the ACC acknowledge that the Chief Justice, Bheki Maphalala, correctly defined prima facie in his judgment, stating that in a criminal case, it means the initial evidence presented by the prosecution is sufficient to establish the commission of an offence.

Prima facie could also mean ‘at first sight’ or ‘on the face of it,’ indicating that the evidence is strong enough to warrant further legal proceedings.

The chief justice also noted that the prosecution has the burden to establish a prima facie case by presenting evidence showing that the essential elements of the offence have been established on a balance of probabilities as opposed to proof beyond reasonable doubt.

*Full article available in our publication.