MBABANE – The move by the ACC to bring fresh evidence in order to obtain warrants of arrest against a prominent businessman and some government officials has been unsuccessful again.
The officials and the businessman were reportedly being investigated in connection with the acquisition and distribution of medicines for public health facilities. The second application was again heard and dismissed by Chief Justice (CJ) Bheki Maphalala.
The CJ’s dismissal of the fresh application was based on the legal principle that the High Court has no jurisdiction to reopen a matter once a final judgment has been delivered.
The fresh application, lodged on August 7, 2025, sought a warrant of apprehension for the same respondents (businessman and the government officials) who were the subject of an initial application dismissed on June 16, 2025.
The initial application, filed on May 16, 2025, also sought orders for warrants to enter, search and seize premises, motor vehicles, offices and electronic devices of the respondents and businesses within the court’s jurisdiction.
The Anti-Corruption Commission (ACC) also sought an order for the warrants to remain confidential and valid until executed or cancelled by the chief justice.
The court also dismissed the initial prayer for warrants of arrest, but had granted the remainder of the orders sought.
The CJ stated that he heard the initial application in his official capacity as an ex officio judge of the High Court as provided by the Constitution.
The case involved the procurement of Anti-Retrovial Drugs by the Ministry of Health from AvaPharm (Pty) Ltd through a single-source procurement method under Tender No. 20 of 2019/2020.
The initial application was based on allegations that procurement procedures were flouted and laws were transgressed. It was argued that an amount of E646 604 745.36 was paid for drugs that were not delivered.
However, the applicant’s counsel conceded in closing submissions that E644 420 603.40 worth of drugs had been delivered, with a shortfall of E2 183 941.90. The judgment noted that the alleged shortfall and an overcharge of E54 995.00 were not substantiated by evidence. “The contradictory evidence coupled with the concession made by the applicant (ACC), who bears the burden to establish the existence of a prima facie case on a balance of probabilities, sufficed to dismiss the first prayer authorising warrants of apprehension of the respondents; however the court granted the remainder of the orders sought by the applicant,” said the chief justice.
In his latest judgment, the chief justice stated that the legal question was whether the law in Eswatini permits the reopening of a matter after it has been concluded. He found that neither the High Court Rules nor the Criminal Procedure and Evidence Act makes such a provision.
The judgment affirmed that once a judicial officer hands down a final decision, he or she is functus officio, meaning their jurisdiction over the case has been fully and finally exercised.
The legal remedy available to the applicant, the chief justice explained, was to lodge an appeal with the Supreme Court against the judgment delivered on June 16, 2025.
Maphalala cited the Supreme Court’s power under Section 148(2) of the Constitution to review its own decisions in exceptional circumstances to prevent gross injustice.
He also referred to Rule 47 of the Supreme Court Rules which outlines the grounds for such a review, including the discovery of new and material evidence that was not available with due diligence at the time of the appeal.
The judgment also noted that the contract between the Ministry of Health and AvaPharm provided for the amicable resolution of disputes through negotiation or final and binding arbitration in accordance with the United Nations Commission on International Trade Law (UNCITRAL).
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‘No authority beyond judgment’
MBABANE – “The principle is that once a judicial officer has rendered or handed down his final judgment, he is considered to have exhausted his judicial authority over that specific matter.”
These sentiments were shared by Chief Justice (CJ) Bheki Maphalala when he dismissed the second application for warrants of arrest that was filed by the Director of Public Prosecutions on behalf of the Anti- Corruption Commission (ACC). He highlighted that the fresh application which was lodged in August 22, 2025 is res judicate, meaning that the matter had been adjudicated by a competent court and cannot be pursued further by the same parties. This, according to the CJ, is inclusive of the evidence upon which that judgment is based.
“This is also true in instances where new or fresh evidence is allegedly found to exist. The party who desires to advance such evidence has to make an application before the appeal court and where the application is successful, that court would first set aside the impugned judgment and either decide the matter on its merits or remit it to the trial court to reconsider the case anew in light of the fresh evidence,” reads part of the judgment. He said this right to apply for leave to lead further evidence rests entirely and logically on there being an appeal before the appeal court.
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