Ex-Health SG Mbengashe takes on SIU

Long before the Special Tribunal handed down a final order in 2021 reviewing and setting aside the Eastern Cape health department’s 2020 tender for the supply of 100 motorcycle clinics, the Special Investigating Unit had already recommended to Premier Oscar Mabuyane that he sanction health superintendent-general Dr Thobile Mbengashe.

As the country caught its breath after the first Covid-19 wave, a whistleblower report had prompted President Cyril Ramaphosa in August 2020 to issue a proclamation for the SIU to investigate the so-called “scooter ambulances” tender, among a raft of pandemic-related PPE procurement issues.

SIU investigators served legal papers on September 8 on the health department and Qonce-based manufacturer Fabkomp, the tenderer whose R10.1m bid to supply 100 motorcycles-with-sidecars was accepted by the department.

Ten days later, the tribunal issued an order interdicting the health department and Fabkomp from continuing with the procurement process, pending the review, and the SIU wasted no time in writing to Mabuyane and recommending disciplinary action against Mbengashe, who by then had moved from the SG position to become the premier’s special advisor.

The SIU made a similar and separate recommendation in respect of then health MEC Sindiswa Gombo, who was fired by Mabuyane.

The former SG’s closed disciplinary inquiry is now in full swing. This reporter has seen transcripts of proceedings from previous sittings.

Ponderous charge sheet

The charge sheet, described by presiding officer Advocate Peter Kroon SC as “a ponderous document”, and by Mbengashe’s counsel Fabian Pretorius as representing the proverbial kitchen sink being thrown at his client, lists four charges, and includes allegations of dishonesty, gross negligence, breaching obligations under the Public Finance Management Act, contravention of procurement prescripts, fruitless and wasteful expenditure.

It details the process from what allegedly amounted to a kick-off meeting on December 13, 2019, identification of specifications, a demand memo justifying the procurement, advertising of the tender, adjudication of the bids, and the letter of award to Fabkomp to supply the vehicles.

A feisty Mbengashe has stated through Pretorius that he neither initiated the fraught tender nor chaired the kick-off meeting, and that rolling out the motorcycle clinics was Gomba’s pet project.

Pretorius repeatedly forced concessions from SIU forensic investigator Glen Muller, whose various affidavits were the basis of the tribunal’s orders and the SIU recommendations to Mabuyane.

The hearing is the first time Muller has faced questions on the allegations contained in his affidavits, since neither the health department nor Fabkomp appeared at the tribunal to challenge the SIU account.  The company’s lawyers skipped the hearing after an agreement was reached with SIU principal lawyer Luvuyo Ndunyana, but tribunal judge Lebogang Modiba refused to grant the agreed draft order, leaving Fabkomp without a means of challenging the SIU before Modiba.

Muller testified before Kroon that Fabkomp was favoured by being given an opportunity to present their product at the December 2019 meeting before any bid processes were initiated. Health officials obtained specifications from Fabkomp which were used in the tender process, creating the strong impression the bid was tailored to favour Fabkomp.

Muller acknowledged he never interviewed Mbengashe to get his side of the story and, under cross-examination, retracted his evidence that Mbengashe initiated the procurement process, stating his claim was not based on direct evidence or first-hand facts, but on inferences he drew from interviews with other health officials.

While Muller asserted that the procurement process was a ruse, part of a scheme to defraud the state, he later conceded that would have required Mbengashe meeting Fabkomp before the December meeting called by Gomba. Pretorius told the hearing Mbengashe was also summoned to the meeting by Gomba, where he was introduced to Fabkomp for the first time. 

‘No resolution taken that the scooters would be procured from Fabkomp‘

Pretorius

A statement in a Muller affidavit, based on affidavits by health officials, that the December meeting decided to procure Fabkomp motorcycle clinics, was also challenged by Pretorius.

Pretorius: “Now there was no such resolution taken… at that meeting, that the scooters would be procured from Fabkomp… I would have a problem with that as well. There is nothing in those affidavits that says that. You are stating this as a fact. You are not saying ‘it is my opinion that this was done’.” 

Muller: “The evidence was put before the [tribunal], that is all I can say.”

Pretorius: “The incorrect evidence was put before the court, Mr Muller, that is what happened here.”

Kroon said Muller had expressed himself “too categorically” and ought to have indicated that he was drawing conclusions based on the affidavits of the officials.

In further comments during the cross-examination, Kroon said the investigator’s brief for purposes of the hearing was constrained, and his opinions, whether they were right or wrong, were irrelevant. 

Muller conceded that the SCM head Celewa Mgijima had not specifically told Mbengashe that the scooter procurement should be stopped, nor raised red flags about the process. Mbengashe had also supported all Mgijima’s proposals at the time, except her request to be re-deployed. Pretorius said this was because he trusted Mgijima to be his “ears and eyes and the person that makes sure that nothing goes wrong in supply chain”.

‘Fruitless & wasteful expenditure’

Muller said Mbengashe should have prevented “fruitless and wasteful expenditure… the time spent on initiating the procurement by officials”.

Subsequently he conceded that, in terms of the PFMA, there was no payment, ipso facto there was no wasteful expenditure, but asked “if we did not do an investigation, would there [perhaps] have been a payment?”

Pretorius said a health finance official would testify on behalf of Mbengashe that he had never come across a set of financial statements listing employees’ wasted time on a project as wasteful or fruitless expenditure.

Muller admitted failing to record Mbengashe’s instruction for SCM officials to conduct post-award negotiations on the tender – actions by the SG which Pretorius said were aimed at ensuring that the right scooters were procured, and a fair price was paid and which, ultimately, would have prevented fruitless and wasteful expenditure.

Pretorius also got Muller to concede he had not undertaken a market analysis to countermand the advice Mbengashe received that Fabkomp was the only company in the country able to offer the motorcycle clinics required by the department.

The hearing will resume in July 2022.

— By RAY HARTLE