[ad_1]
MBABANNE – Attorney General Timothy Matsebula has been asked to provide documents to Sincedzile Magwaza and Fortunate Bhembe regarding the appointment of Funduzi Forensic Services (Pty) Ltd to investigate drug shortages.
Magwaza and Bhembe are two senior health officials who filed an appeal to the Industrial Court in June 2023, challenging their appearance during an investigation by Funduzi Forensic Services investigators into shortages of medical drugs in public health institutions. Magwaza is the chief procurement officer at the Ministry of Health and Bhembe is the deputy director of pharmaceutical services. After filing their founding affidavits, the defendants (the Ministry of Health and its Secretary General, the Auditor General (AG) and Funduzi) filed their defence papers.
However, according to Bhembe and Magwaza, certain documents referred to in these defence papers were not attached. Bhembe and Magwaza requested that these documents be attached before filing the defence papers. This has never happened since June 2023, apart from some documents filed by Funduzi. Yesterday, Industrial Court Judge Abande Dlamini ordered the Attorney General and Funduzi to provide Bhembe and Magwaza with the necessary documents within 10 days of the judgment. The court reprimanded the senior health official for not filing a reply affidavit in time. The court also ordered that after submitting the requested documents, Bhembe and Magwaza should file their reply documents within seven days.
ask
When the applicants (Bhembe and Magwaza) received the defendants’ defence documents on June 22, 2024, their lawyers, Zweli Jele of Robinson Bertram, wrote to the Attorney General requesting the following documents:
(a) the contract between the Auditor General and Funduzi, (b) the application made by the Auditor General leading to the appointment of Funduzi (under section 6 of the Procurement Act) and (c) the list of bidders submitted by the Auditor General for the purpose of exercising the limited tendering method of procurement.
The request was made under Regulation 39(1) of the Public Procurement Regulations 2020.
The applicant also wants (d) the reasons submitted by the Auditor-General to the Tender Board under section 39(5) and (e) the opinion submitted to the Tender Board in relation to the procurement of Funduzi for a forensic audit.In relation to Funduzi, Bhembe and Magwaza requested the production of the annexure which was apparently quoted in the pleadings, the statement testified by Thulani Mabuza, the statement allegedly submitted by Charles Kwezera and a copy of the contract signed between Funduzi and a certain Boyce Mkhize.
These are the documents the Attorney General and Funduzi were ordered to produce to the applicant.The applicant seeks to compel the Attorney General and Funduzi to produce the documents requested to assist them in addressing in their affidavits of defence the allegations made by the defendant in his (the defendant’s) affidavit of defence.
Affidavit
The court has issued a timetable requiring Magwaza and Bhembe to file their affidavits in reply by close of business on June 27, 2023, which is more than a year ago. When the case was heard on May 22, 2024, the court heard that Funduzi had met some of the applicants’ requirements, but some documents were still to be completed.The Attorney General and Funduzi opposed the applicant’s application. In doing so, they raised legal points, such as that the case was brought to court prematurely because the attorney general was still awaiting a ruling from the court on whether it had jurisdiction to deal with the matter.
They also argued that the documents sought were not in their possession. At the beginning of arguments, Jeller, representing the applicants, informed the court that Funduzi had produced some documents but two key documents were yet to be produced despite their mentioning them in their defence. Speaking on the issue of the jurisdiction of the Industrial Court, Justice Dlamini said the court was of the view that once all the pleadings were on record, the court would consider whether it had the necessary jurisdiction to hear the case and determine the merits of the case.
The judge further said that the defendants’ refusal to produce the requested documents and attachments amounted to what is commonly known as an ambush suit. “This occurs when one party in a case conceals evidence from the other party, leaving the opposing litigant with little opportunity to present an adequate defense or response to the allegations made against him or her in the complaint. “I point out that fairness is the paramount principle of any proceedings before this court and under no circumstances will this court countenance ambush trials or proceedings as they are deplorable,” Justice Dlamini said.
Meanwhile, Justice Dlamini noted that three judges had recused themselves from the matter. The case was brought to court on an urgent notice. The case has been before the court for more than a year.“In fact, the case has been on the docket of this Court for more than a year. During this one year, the case has remained pending and at least three of my brothers have recused themselves from hearing and determining the disputes of the litigants in these proceedings for various reasons.
solve
“In passing, I would like to point out that for the first time in my 14-plus years as a judge of this court, we have seen not one or two, but three judges decide that they cannot play any role in assisting litigants to resolve their disputes. “Other judicial officers have decided not to hear the case due to threats to their lives and various other reasons. This is indeed a worrying situation and cannot be taken lightly,” Justice Dlamini said. He said judges should approach every case with an open mind and render fair judgements. They must be fair and impartial, he said. “So, as judges, we have to be careful before we decide a case because we are in deep trouble, deep trouble, because of fear. “This phenomenon is absolutely unacceptable and should be nipped in the bud before it gets out of control.”
[ad_2]
Source link
