Special Investigating Unit v Zeelwa Trading Pty (Ltd) and Another (MP03/2021) [2022] ZAST 22 (13 October 2022)

Special Investigating Unit v Zeelwa Trading Pty (Ltd) and Another (MP03/2021) [2022] ZAST 22 (13 October 2022)

The Tribunal found that the SIU failed to establish a prima facie case that the Department of Social Development did not follow prescribed procurement procedures when appointing Zeelwa Trading (Pty) Ltd. The SIU's own investigator found no irregularities, and no evidence was led to show that Zeelwa was appointed unlawfully or that the market was not properly tested. The Tribunal also found that the SIU failed to prove that Zeelwa charged excessive prices for PPE, as the SIU's benchmarking of prices was arbitrary and not supported by Treasury Instruction 8, which allows for different prices based on specifications. The SIU did not discover key documents, including approved deviations and...

Citation
[2022] ZAST 22
Parties
Applicant: Special Investigating Unit; Respondent: Zeelwa Trading PTY (LTD); Respondent: Mpumalanga Department of Social Development
Court
Special Tribunal
Jurisdiction
South Africa
Judgment Date
13 October 2022
Case Number
MP03/2021
Procedural Posture
Review Application / Absolution From the Instance After Close of Applicant's Case
Outcome
Application for absolution from the instance granted in favour of Zeelwa Trading (Pty) Ltd, with punitive costs against the SIU.
Judges
L.T. Modiba
Legal Topics
Public Procurement, Absolution From the Instance, Treasury Instructions, Just and Equitable Relief
Administrative Law Civil Procedure Public Procurement Absolution From the Instance Treasury Instructions Just and Equitable Relief

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Parties

Special Investigating Unit

Applicant

Zeelwa Trading PTY (LTD)

Respondent

Mpumalanga Department of Social Development

Respondent

Procedural Posture

Review Application / Absolution From the Instance After Close of Applicant's Case

Legal Issues

  1. 1 Whether the Mpumalanga Department of Social Development followed prescribed procurement procedures when appointing Zeelwa Trading (Pty) Ltd.
  2. 2 Whether Zeelwa Trading (Pty) Ltd charged excessive prices for personal protective equipment supplied to the Department.
  3. 3 Whether the Special Investigating Unit established a prima facie case for the relief sought.

Ratio Decidendi

The Tribunal found that the SIU failed to establish a prima facie case that the Department of Social Development did not follow prescribed procurement procedures when appointing Zeelwa Trading (Pty) Ltd. The SIU's own investigator found no irregularities, and no evidence was led to show that Zeelwa was appointed unlawfully or that the market was not properly tested. The Tribunal also found that the SIU failed to prove that Zeelwa charged excessive prices for PPE, as the SIU's benchmarking of prices was arbitrary and not supported by Treasury Instruction 8, which allows for different prices based on specifications. The SIU did not discover key documents, including approved deviations and...

Court Disposition

Application for absolution from the instance granted in favour of Zeelwa Trading (Pty) Ltd, with punitive costs against the SIU.

Orders

  • The first defendant's application for absolution from the instance succeeds with costs on a punitive scale.
  • The plaintiff shall pay the first defendant's wasted costs occasioned by the postponement of the trial schedule for 13-17 June on a punitive scale, including directors' travel and accommodation costs in Johannesburg.