Special Investigating Unit and Another v Ndlovu and Others (GP 19/2021) [2022] ZAST 12 (7 June 2022)

Special Investigating Unit and Another v Ndlovu and Others (GP 19/2021) [2022] ZAST 12 (7 June 2022)

The Tribunal found that the NHLS procurement transactions for PPE supplies were conducted in flagrant disregard of emergency procurement procedures, resulting in unlawful and unconstitutional payments. The evidence established that Hamilton Ndlovu and the companies he controlled fraudulently exploited the emergency procurement system, using fronting companies to channel funds for personal benefit. The applicants did not unreasonably delay in instituting the review application, as it was preceded by thorough investigations and asset preservation measures. The respondents failed to prove non-enrichment, and the Tribunal held Hamilton Ndlovu and the companies he represents jointly and...

Citation
[2022] ZAST 12
Parties
Applicant: Special Investigating Unit; Applicant: National Health Laboratory Service; Respondent: Thabiso Hamilton Ndlovu; Respondent: Zaisan Kaihatsu (Pty) Ltd; Respondent: Registrar of Deeds, Pretoria; Respondent: Bugatti Security Services and Projects (Pty) Ltd; Respondent: Victor Nkhwashu Attorneys Inc; Respondent: Zaheer Cassim NO; Respondent: Commissioner of the South African Revenue Services; Respondent: Akannii Trading and Projects (Pty) Ltd; Respondent: HamiltonN Holdings (Pty) Ltd; Respondent: Hamilton Projects CC; Respondent: Mok Plus One (Pty) Ltd; Respondent: Abompetha (Pty) Ltd; Respondent: Feliham (Pty) Ltd; Respondent: Joritans Logistics (Pty) Ltd; Respondent: Persto (Pty) Ltd; Respondent: Kgodumo Mokone Trading Enterprise (Pty) Ltd
Court
Special Tribunal
Jurisdiction
South Africa
Judgment Date
7 June 2022
Case Number
GP 19/2021
Procedural Posture
Review Application / Final Judgment After Opposed Application
Outcome
Application granted. Procurement transactions and payments set aside as unlawful. Hamilton Ndlovu and associated companies held jointly and severally liable for repayment. Preserved assets declared forfeit to the State. Costs awarded on punitive scale.
Judges
L.T. Modiba
Legal Topics
Public Procurement Irregularity, Condictio Ob Turpem Vel Inustam Causam, Forfeiture of Assets, Preferential Procurement Policy Framework Act, Enrichment Claims, Emergency Procurement Procedures
Administrative Law Civil Procedure Commercial and Corporate Public Procurement Irregularity Condictio Ob Turpem Vel Inustam Causam Forfeiture of Assets Preferential Procurement Policy Framework Act Enrichment Claims +1 more

Case Brief

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Parties

Special Investigating Unit

Applicant

National Health Laboratory Service

Applicant

Thabiso Hamilton Ndlovu

Respondent

Zaisan Kaihatsu (Pty) Ltd

Respondent

Registrar of Deeds, Pretoria

Respondent

Bugatti Security Services and Projects (Pty) Ltd

Respondent

Victor Nkhwashu Attorneys Inc

Respondent

Zaheer Cassim NO

Respondent

Commissioner of the South African Revenue Services

Respondent

Akannii Trading and Projects (Pty) Ltd

Respondent

HamiltonN Holdings (Pty) Ltd

Respondent

Hamilton Projects CC

Respondent

Mok Plus One (Pty) Ltd

Respondent

Abompetha (Pty) Ltd

Respondent

Feliham (Pty) Ltd

Respondent

Joritans Logistics (Pty) Ltd

Respondent

Persto (Pty) Ltd

Respondent

Kgodumo Mokone Trading Enterprise (Pty) Ltd

Respondent

Procedural Posture

Review Application / Final Judgment After Opposed Application

Legal Issues

  1. 1 Whether the procurement transactions and payments for PPE supplies by NHLS were unlawful and unconstitutional.
  2. 2 Whether the applicants unreasonably delayed in instituting the review application.
  3. 3 Whether the respondents are liable to repay the NHLS on the basis of enrichment claims, including condictio ob turpem vel inustam causam.

Ratio Decidendi

The Tribunal found that the NHLS procurement transactions for PPE supplies were conducted in flagrant disregard of emergency procurement procedures, resulting in unlawful and unconstitutional payments. The evidence established that Hamilton Ndlovu and the companies he controlled fraudulently exploited the emergency procurement system, using fronting companies to channel funds for personal benefit. The applicants did not unreasonably delay in instituting the review application, as it was preceded by thorough investigations and asset preservation measures. The respondents failed to prove non-enrichment, and the Tribunal held Hamilton Ndlovu and the companies he represents jointly and...

Court Disposition

Application granted. Procurement transactions and payments set aside as unlawful. Hamilton Ndlovu and associated companies held jointly and severally liable for repayment. Preserved assets declared forfeit to the State. Costs awarded on punitive scale.

Orders

  • The application is consolidated with the interim interdict applications under case number GP 19/2021.
  • Specified procurement decisions and contracts between NHLS and certain respondents are declared unconstitutional, unlawful, and invalid and are set aside.