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DRUGS CASE: PS DEMANDS ANSWERS FROM PROCUREMENT OFFICER

31/10/2023 16:14:00 Mbongiseni Ndzimandze

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MBABANE – On suspension Principal Procurement Officer in the Ministry of Health, Sincedzile Magwaza, has been called upon to answer on allegations that she purportedly received monies from government suppliers of medical drugs.

Magwaza is one of the two senior officials who obtained an interim order to stop a forensic investigation against them. The investigation concerns irregularities relating to the procurement, in particular the acquisition and distribution of medicine to public health institutions. The investigation against the duo has been stopped for now, pending the outcome of the matter before court. The correspondence to Magwaza titled ‘allegations on possible misconduct’ was written by the Principal Secretary (PS) in the Ministry of Health, Khanya Mabuza.
“It is alleged that as principal procurement officer employed by the Government of Eswatini you failed to act in a proper manner by placing yourself in a conflicting position in that as director of Larreth Group, a company dealing with procurement training, you are alleged to have received amounts of money from the same government suppliers of drugs and medical suppliers, namely Swazipharm and Cerium Scientific,” reads part of the correspondence that was written to Magwaza by the PS.

It is further alleged that Magwaza had an improper relationship with a supplier to government and allegedly did not disclose an agreement entered into between Cerium Scientific and her, thereby acting in conflict of interest. The Civil Service Commission (CSC) has since invited Magwaza for a suspension hearing slated for tomorrow. In the invite, which was written by Ncamsile Masuku on behalf of the CSC, Magwaza was informed that she was at liberty to appear with her legal representative. Magwaza has since filed an urgent application, where she is seeking an order interdicting the CSC and the Ministry of Health from proceeding with the pre-suspension hearing against her, scheduled for November 1, 2023, on the basis that such a hearing was unlawful and constituted an unfair labour practice.

Constitution

Respondents in the matter are the chairman of the CSC, PS in the Ministry of Health, auditor general, attorney general and Funduzi Forensic Services (PTY) Limited. In her application, Magwaza argued that as a public officer, she had a constitutional right to be treated fairly and accorded all procedural rights in respect of any investigative or disciplinary process. The applicant (Magwaza) contended that her rights emanated from the Employment Act, Sections 32 and 33 of the Constitution. “A double suspension such as that, which is envisaged in these proceedings, offends principles of fairness and is with respect unlawful. The act of suspending me twice in succession without having revoked the earlier suspension is impermissible. I have a right to protect myself against such conduct,” argued the applicant.

Magwaza averred that she had a right not to be subjected to an unlawful disciplinary process. According to the applicant, the respondents were allegedly placing reliance on the report that had been compiled by the fifth respondent (Funduzi Forensic) allegedly in violation of the order of the court. “The respondents are eating from a poisoned tree in that they are relying on illegally obtained evidence, that I had already highlighted had been fabricated (this fact was communicated by one of the investigators and buttressed by the editing of the draft report, which was done by another of the investigators). For completeness, the fact that the evidence had been fabricated against me was communicated to me by Charles Kwezera and the editing of the report to support the narrative was done by Advocate Boyce Mkhize,” contended Magwaza. These are allegations whose veracity is still to be tested in court.

She submitted that she had a right to be treated fairly, which entailed being accorded the same procedural rights as her colleagues, i.e. the right to appear before an investigating panel and presenting her version of events, not to be subjected to a process that was tainted with illegality and to be accorded a hearing, where there were no pre-dispositions. Magwaza told the court that she had good prospects of success in the main application, given the fact that there had already been demonstrable evidence that the investigative process was tainted and that it was in fact illegal. “I also submit that even the disciplinary process is anchored on the same illegality because they seek to rely on the very evidence that I was informed had been concocted. The matters are pending before court,’ averred Magwaza. She alleged that the respondents had not in any of their correspondence alluded to any legitimate business interest that would be harmed by her return to work.

Disingenuous

According to Magwaza, the respondents had allegedly been disingenuous in their conduct of this matter. Magwaza claimed that there was still no plausible explanation on the part of the respondents as to why the fifth respondent was retained to continue with the investigation after the revelations contained her founding affidavit had come to the fore. “The only inference to be drawn from their persistence is that they have an ulterior motive which is to have me and some of my colleagues dismissed without any credible evidence. This I submit has been the plan all along,” she argued. She stated the alleged actions of the respondents of defying an order of court clearly indicated that they were desirous of achieving their objectives of having her dismissed. “In the correspondence, which serves before court in the main application, the auditor general described me as the mastermind behind the illicit procurement of drugs. It is noteworthy that in the so-called disciplinary charges, there is no mention of any illicit procurement or distribution of drugs. The charges relate to my involvement in an academic institution that is involved in the training on public procurement,” she argued.

She submitted that on the strength of an interdict being granted, she was advised that she had prospects of success in respect of the declaratory relief. “I submit that a case has been made out for the respondents to be held in contempt of court in that they have acted in violation of the order of court of June 16. I further submit that the intended pre-suspension hearing is unlawful, and therefore, I have prospects of success in respect of that,” she argued. Magwaza pointed out that the principle of fairness was the cornerstone of employment relations. She contended that all processes that were embarked upon by an employer against an employee were anchored on fairness.

Investigations and disciplinary processes must adhere to fundamental principles of fairness and the tenets of natural justice. Procedural fairness is at the heart of any disciplinary process.
“The respondents will not be prejudiced by the grant of the interdictory relief in that, there are still court proceedings and will be at their disposal to undergo any investigation (by credible investigators) and will submit to any ensuing disciplinary process. I, on the other hand, will not have any remedy if I am subjected to any unlawful processes,” averred the applicant. She told the court that the balance of convenience favoured the grant of interim relief. The applicant is represented by Zweli Jele of Robinson Bertram while appearing for the respondent is Principal Crown Counsel Vikinduku Manana from the chamber of the attorney general.