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GOVT WANTS JUDGE RECUSAL FROM DRUGS PROCUREMENT CASE

05/02/2024 08:44:00 Kwanele Dlamini

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MBABANE – Government says it has not been allowed to present its case fully in court in the medical drugs and supplies procurement case.

As a result, government applied for the recusal of Industrial Court Judge Muzikayise Motsa from presiding over the matter. The Principal Secretary in the Ministry of Health, Khanyakwezwe Mabuza, alleged that Judge Motsa was not regulating the proceedings in a fair manner. In this matter, Principal Procurement Officer in the Ministry of Health, Sincedile Magwaza, and Deputy Director-Pharmaceutical Services Fortunate Bhembe, took government to court in a bid to stop the forensic investigation against them into the issue of procurement of medical drugs. The investigation involved Nikilitha Consultancy, Clariscent Consulting and Funduzi Forensic Services (Pty) Ltd.

Urgent

When they approached the court on an urgent basis in June 2023, Magwaza and Bhembe divided their prayers into Part A and Part B. In Part A, they want Nikilitha to be interdicted from requiring them to appear before the investigation panel constituted by individuals who were previously part and/or associated with the entities known as Nikilitha and/or Claricent and Funduzi. In Part B, they want the court to declare that the forensic investigation is tainted with illegality, fraught with multiple irregularities and that its outcome had been pre-determined. The applicants (Magwaza and Bhembe) are also praying for an order declaring that the decision by the auditor general to appoint a forensic investigation team is tainted with illegality for want of compliance with the procurement laws of the Kingdom of Eswatini. They alleged that the forensic investigators failed to follow fair and lawful processes in the discharge of their functions and that the entire investigative process to the date of the applicant be declared unlawful and/or irrational and invalid.

Part A was decided in some sort of piecemeal fashion in that the government consented to the relief sought and the other respondents (Nikilitha and/or Claricent and Funduzi) opposed the relief sought. The latter raised points of law on jurisdiction, which is still to be decided. Government argued that it was not receiving a fair trial. One of the reasons, according to the Health PS, for the recusal application, was that Judge Motsa had allegedly mero motu (of one’s accord) revived the interim order granted in favour of Bhembe and Magwaza concerning Part A of their prayers. This, according to Mabuza, was unfair on the part of the judge. He said without the revival of the interim order, Part A would have been disposed of to the benefit of government and the other respondents.

The PS said it was not unreasonable to harbour an apprehension of bias on the part of the judge. “The impression created is that the decision to revive the rule nisi was intended to assist the applicants. On this ground alone, I submit that the learned judge ought to disqualify himself from hearing the matter,” Mabuza submitted. The veracity of these allegations is still to be tested in court. Bhembe and Magwaza are yet to file their answering papers to the recusal application. The duo is represented by Zweli Jele of Robinson Bertram while Principal Crown Counsel Vikinduku Manana appears for government. Government has instructed a South African advocate for the recusal application. Funduzi is represented by Kwanele Magagula of Sithole and Magagula Attorneys.

The PS also argued that from inception, the respondents have not been allowed to present their cases fully. He alleged that the court failed to regulate Part A in a fair manner. Mabuza told the court that the matter was set for hearing on June 16, 2023, if there was no opposition from the respondents. However, he said they filed notices to oppose, which meant that the matter would have to be heard on a different future date. “It proceeded to hear the application without the answering affidavits of the respondents. The answering affidavits could not be filed due to the unreasonably truncated time periods set by the applicants. “Interestingly, the matter ought not to have been heard on June 16, 2023, in the first place, because the applicants’ notice of motion had indicated that the matter will only be heard in June if there was no opposition, Mabuza said.

Ventilation

He stated that despite this, the court proceeded to hear the matter without a full set of papers for the proper ventilation of the issues between the parties. The PS said he was aware that the government had initially consented to Part A, but the decision could not have been properly taken considering the short period afforded to them to consider the matter. According to Mabuza, the court ought to have postponed the matter and issued directives for the filing of answering affidavits in relation to Part A. “This would have been a fair ruling under the circumstances and it would have been in line with the notice of motion of the applicants which stated that the matter would only be heard on June 16, 2023, if there was no opposition. These submissions are made considering the principle that a court is not an umpire but must actively regulate proceedings in a fair manner to all the parties.”

The other ground for recusal is that the judge had allegedly consistently refused to hear the point on jurisdiction raised by the respondents. The point of jurisdiction, Mabuza submitted, was pertinently raised at the first hearing of the matter on June 16, 2023, by the private respondents (Nikilitha and/or Claricent and Funduzi). “In his judgment on the Rule 30 application, at paragraph 13, the learned judge acknowledges that the point was raised. However, he does not mention what his ruling was on the point. That is because he never considered the point,” further argued Mabuza.

Paragraph 13 of the Rule 30 application read: A notice to raise points of law was filed from the bar on behalf of the 6th respondent (Funduzi) with the object of challenging the jurisdiction of this court in this matter and the grant of any order sought by the applicants was opposed until the point of law was heard and determined.” Mabuza submitted that the point on jurisdiction ought to have been considered first because it was definitive and dispositive of the matter. He also stated that the court also had a duty to raise the question of jurisdiction even if none of the parties had raised it because a court must have jurisdiction for its judgment or order to be valid. He said if a court did not have jurisdiction, its judgment or order was a nullity. The matter is pending in court.