MBABANE – The Eswatini Medical Christian University (EMCU) Council has alleged that the Chairman of the committee appointed to investigate the affairs of the university, Mbuso Simelane, attempted to divert E10 million of public funds.
The allegation is contained in a replying affidavit filed by the EMCU Council, deposed to by Chairman Dr Bongani Dlamini, in an application before the High Court, in which the university council and council members are challenging the establishment of the committee.
The applicants are seeking an order reviewing and setting aside the decision attributed to Prime Minister Russell Mmiso Dlamini to appoint a committee to investigate the affairs of EMCU.
According to the replying affidavit, the applicants contend that Simelane’s previous involvement with the EMCU Foundation creates a conflict of interest and a reasonable apprehension of bias.
Dr Dlamini states that Simelane was formerly the chairperson of the EMCU Foundation. He alleges that the foundation in which Simelane was involved attempted to divert E10 million of public funds towards the purchase of a farm.
The council, according to the affidavit, blocked the proposed transaction.
“Mbuso Simelane is also heavily conflicted as the foundation which he was a part of, attempted to divert E10 million of public funds for a farm purchase which the council blocked,” submitted Dr Dlamini.
He described the issue as a material fact which, according to the applicants, cannot be disregarded when determining whether Simelane is suitable to chair an investigation into the university.
The affidavit states that the applicants do not challenge the professional competence of Simelane or other members of the committee. Instead, their complaint concerns their previous involvement in matters connected to EMCU.
Dr Dlamini said the applicants’ concern was whether the two could bring an impartial mind to an investigation concerning the university.
According to the affidavit, the respondents have admitted that Yang’s reports formed the basis of allegations which are among matters intended to be investigated by the committee.
Dr Dlamini argued that this creates another structural conflict because an attorney representing a person who is suing EMCU would be sitting on a panel investigating the same institution.
The applicants maintain that they are not required to wait for the commissioners to sit before raising their objections or seeking their removal.
Dr Dlamini stated that the level of alleged conflict is sufficient for the appointments to be regarded as invalid and that the High Court has the power to remove the commissioners if the review application succeeds.
He further stated that Simelane has not filed an affidavit disputing his involvement with the EMCU Foundation.
The council’s challenge to the committee goes beyond the alleged conflicts involving its members. The applicants also question the legality of the decision to establish the investigation and argue that it duplicates investigations already being conducted by other institutions. These are allegations contained in an affidavit whose veracity is still to be tested in court.
According to the affidavit, Parliament’s Select Committee, the auditor general and the Anti-Corruption Commission (ACC) are already investigating matters concerning EMCU.
Dr Dlamini argued that establishing another executive-led investigation into substantially the same matters amounts to duplication of institutional processes and a waste of public funds.
He stated that Parliament’s investigation was already at an advanced stage and that the Executive should not establish a parallel process to investigate matters falling within Parliament’s constitutional oversight function.
The applicants further contended that the prime minister had already formed conclusions about some of the issues that the committee was intended to investigate.
Dr Dlamini refers to allegations in the prime minister’s answering affidavit concerning corruption and states that some of those matters form part of Parliament’s investigation, which had not yet produced its findings.
He argued that the allegations made by the prime minister demonstrate that the executive had already formed a view on facts that the committee was supposed to investigate.
The applicants also raise concerns about evidence and documentation held by the ACC. Dr Dlamini stated that some applicants’ electronic devices and documents had been seized during the ACC investigation.
According to the affidavit, some of the seized items allegedly had been tampered with, while the applicants were expected to answer questions concerning material that remained in the possession of the ACC.
The council argued that the circumstances made the establishment of another investigation unreasonable, particularly because the prime minister had acknowledged being aware of the ACC investigation.
The applicants maintain that the committee’s establishment should be reviewed under the doctrine of legality, which requires the Executive to act within the powers granted to it by law.
Dr Dlamini also disputed the prime minister’s contention that the council lacks legal personality to bring the review application. He stated that the council is the statutory governing body of EMCU and, therefore, has a direct and substantial interest in any investigation into the university’s operations.
He further stated that the university operates through its council and that an investigation into the university necessarily affects the council.
The applicants are asking the High Court to review and set aside the decision establishing the committee. They also seek the removal of Simelane and Mangaliso Magagula on the basis of the alleged conflicts of interest if the court finds that the committee itself was lawfully established. The EMCU council and other applicants are represented by Siphamandla Simelane of Robinson Bertram. The matter is pending in the High Court.
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