Judge questions SIU’s conduct in Mpumalanga PPE case

The Special Tribunal on Monday absolved a Mpumalanga company of a claim by the Special Investigating Unit (SIU) that it charged excessive prices for PPE.

The tribunal showed its disapproval with the way the SIU conducted the case by making a punitive costs order against it.     

The SIU had sought an order declaring the procurement process unlawful and setting it aside. The department of social development in Mpumalanga had appointed Zeelwa Trading to supply it with personal protective equipment (PPE) during the Covid-19 pandemic in 2020.

The SIU also sought an order for Zeelwa to repay the department R798,000.

During the trial at the Mpumalanga high court in Mbombela last week, the SIU led the evidence of three witnesses and closed its case.

Thereafter, Zeelwa applied for absolution from the instance.

On Thursday last week, judge Lebogang Modiba granted the order absolving Zeelwa from the SIU’s claim.

However, Modiba did not grant an order for costs because she held the view that the manner in which the SIU conducted this matter might call for censure by way of punitive costs.

She said justice and equity may not be served if Zeelwa was left out of pocket as a result of the legal costs it incurred to defend the trial.

Modiba then asked parties to file further written submissions on Friday addressing this issue.

The SIU’s conduct in this manner calls for serious deprecation by way of a punitive cost order.

—  Lebogang Modiba, judge

In the judgment on Monday, setting out reasons for absolving Zeelwa from the SIU’s claim with costs on a punitive scale, Modiba said the SIU led no evidence to establish the allegation that when it appointed Zeelwa, the department did not follow the prescribed procurement procedure.

Modiba said according to a forensic investigator employed by the SIU who investigated the transactions, there were no irregularities in the manner in which Zeelwa was appointed.

“On what basis does the SIU allege that Zeelwa’s appointment was unlawful and irregular?

“When asked during cross examination whether a report on the investigation into the impugned transactions was compiled, the answer was affirmative. The SIU failed to discover this report,” Modiba said.

She said none of its other witnesses presented evidence that established a prima facie case that Zeelwa’s appointment was unlawful and irregular.

Modiba said supply chain management officials at the department would have knowledge  of the procurement process followed to appoint Zeelwa in respect of the impugned transaction.

“Regrettably, none of these officials was called to testify.”

She said none of the SIU’s witnesses testified whether Zeelwa was appointed based on a single quotation procedure or whether more quotations were sourced from other service providers.

Modiba said from evidence presented by the witnesses, it was improbable that Zeelwa was appointed on a single quotation basis.

Modiba also said at the end of its case, the SIU had not established prima facie evidence that Zeelwa charged excessive prices for PPE items.

“The SIU’s conduct in this manner calls for serious deprecation by way of a punitive cost order.”

Modiba said the SIU’s investigator did not find irregularities in the manner in which the department transacted with Zeelwa.

“Yet the SIU formulated a ground of review in this regard, only not to lead any evidence to establish prima facie that Zeelwa’s appointment was unlawful.”