Businessman Hamilton Ndlovu has filed for leave to appeal a ruling of the Special Tribunal which banned him from doing business with the state, and ordered him and his business associates to repay R150m.
The tribunal also set aside and declared unlawful contracts awarded to Ndlovu and companies related to him. Ndlovu and his companies were blacklisted from doing business with the state in terms of section 15 of the Preferential Procurement Policy Framework Act.
This week, Ndlovu filed papers before the tribunal indicating that he would be appealing the ruling on grounds of the court “misdirected its inquiry on the facts and thereby incorrectly assessed and/or determined the facts”.
“The honourable court misdirected its inquiry on the application of the law. The court incorrectly applied the law, and/or applied the law on the incorrect facts,” stated Ndlovu’s court papers, which TimesLIVE has seen.
He said in court papers that the court had exercised discretion on “wrong facts”.
Ndlovu, who scored PPE contracts amounting to more than R100m, leapt into the public domain in May 2020 after video footage was posted online exposing a fleet of luxury vehicles worth about R11m he had bought,
They included three Porsches, a Jeep and a Lamborghini Urus SUV.
The SIU and the National Health Laboratory Services (NHLS) initially went to the Special Tribunal trying to recoup R172m from the businessman which they alleged was received through a fraudulently awarded tender to supply personal protective equipment.
Special Tribunal judge Lebogang Modiba calculated up to R158m was liable to be repaid to the state.
“The NHLS is urged to invoke section 15 of the Preferential Procurement Policy Framework Act to list the fourth, ninth, 10th, 11th, 12th, 13th, 15th and 16th respondents, their directors and shareholders and Luiborn Dorn Ndlovu in his capacity as a director in the 14th respondent on the database of restricted suppliers,” the ruling states.
Ndlovu is now arguing that the tribunal which declared unlawful the contracts he was awarded by the NHLS had committed errors by accepting versions presented by the NHLS and SIU, including a R13.8m contract which Ndlovu disputes was for the procurement and delivery of PPE.
In his papers, Ndlovu said though they disputed that the R13.8m was paid to them for the purchase of PPE delivered to the NHLS, they could not “assert the precise amount expended for the procurement and delivery of PPE” from that amount.
“The Special Tribunal resolved the factual dispute (in relation to the amount expended in the procurement of PPE) in the applicant's (NHLS's) favour, when it ought to have referred the issue for a further inquiry as had happened in many other similar circumstances before [it],” Ndlovu stated.
He said an error was accepted by the court “to his disadvantage”.
“The applicants said they could not verify the exact quantities of PPE delivered, but their assessment of the flow of funds indicated that an amount R13,891,253.87 is thus bandied [about] as the cost component of the impugned contracts for the supply of PPE,” Ndlovu argued.
He said this amount arose from an evaluation of bank statements and that the transactions were assessed “on the narrow basis of the references attached to particular transactions”.
The tribunal's spokesperson, Selby Mokgotho, confirmed that Ndlovu had filed leave to appeal the judgment granted on June 7.
“In terms of the directives issued, Ndlovu has until July 8 to file his heads of argument while the Special Investigating Unit will have until July 15 to file its heads of argument and a case management meeting will be convened immediately afterwards,” Mokgotho said.
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