Africa-Press – Eswatini. Government has failed in its bid to reverse the interim interdict order which was obtained by two civil servants who are challenging the probe into Central Medical Stores (CMS) drug-procurement.
The Industrial Court Judge, Muzikayise Motsa on Monday issued an order dismissing the notice by government to anticipate the Rule Nisi which was in retaliation of the urgent application that was launched by the ministry of health’s Principal Procurement Officer Sincedzile Dlamini-Magwaza and the Deputy Director of Pharmaceutical Services Fortunate Bhembe.
The duo obtained interim court orders after filing an urgent application on June 13 following the start of the forensic investigation pertaining to allegations of fraud in the procurement of drugs at CMS.
They were granted the interim order, among others, to interdict and prohibit the respondents from carrying out forensic investigations against them.
Another interim order was then sought to interdict Nikilitha Consulting as one of the three forensic consultancy services companies contracted by the ministry of health from requiring the two to appear before the investigating panel constituted by individuals who were previously associated with the three entities.
They were successful in obtaining the interim order, declaring that the forensic investigation initiated and carried out by the respondents was tainted with illegality, impropriety, fraught with multiple irregularities, is anchored on impermissible acts of entrapment, its outcome has been predetermined and does not constitute a legitimate and fair investigation.
They also said it must be declared that the decision to appoint a forensic investigation team was tainted with illegality for want of compliance with the country’s procurement laws.
However, the Minister of health, the principal secretary in the ministry of health, the auditor general, Nikilitha Consulting, Clariscent Consulting and Funduzi Forensic Services, who are cited as the first, second, third, fourth, fifth and sixth respondents, respectively, wanted the application reversed.
The respondents in turn filed points of law as well as the notice to anticipate the Rule Nisi, prompting head to head proceedings as the applicants vehemently filed their notice to oppose the anticipation, seeking that it be set aside for reasons that it was an irregular step or proceeding.
Judge Motsa through his ruling resolved the issue on Monday, setting aside the notice to anticipate the Rule Nisi.
Judge Motsa further ruled that the application filed by the applicants in terms of Rule 30 (1) was properly before court, which means it ought to continue.
He then dismissed the notice to anticipate a return date by the respondents in the circumstances of the case, and said it was an irregular step and without merit.
The judge’s reasons included that the objection by government was raised for the court’s reconsideration of the Rule Nisi it issued on the interim order.
He also said although such was permissible, that applied only if the interim order was granted in the absence of the aggrieved party.
“In casu, the interim order was obtained in the presence of the respondents who are opposing the urgent application.
“So in the circumstances of this case, notwithstanding that we do not have an equivalent of Rule 2(12) (c) in our rules but even if we had leeway under the common law or any other law, the respondents would not qualify to launch an application for reconsideration of the interim order because it was granted both in their presence and with their consent,” Judge Motsa said.
The judge said another reason was that the interim order was issued with the consent of the respondents’ attorneys. Judge Motsa said the respondents filed their opposing papers after time for doing so had lapsed.
Nevertheless, he said the respondents filed a notice to raise points of law which was followed by a notice to anticipate a Rule Nisi.
Judge Motsa said he noted that as soon as the notice to anticipate the Rule Nisi was issued, there was a notice to oppose same filed by the applicants to have the notice to anticipate set aside.
Judge Motsa also said the applicants laid out circumstances under which the rule in respect of anticipating the return of an interim order operates. The first, he said, was that if the application was ex parte and is brought in the absence of the other party, the order is granted in favour of the applicant.
Order
Secondly, he said if the order is prejudicial to the other party; the other party is not obliged to wait until the return date but can file a notice to anticipate the return date.
Another circumstance the judge said was wherein the other party was served with the application, but was not in court when the application was moved and motivated and an order was granted, the other party is still entitled to anticipate the return date so that it was brought forward.
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