SIU’s gaffe, nixing of lawyers’ deal in ‘scooter clinic’ probe

An eRanger motorcycle with health clinic sidecar and accessories. Picture: eRanger Production Company

The Special Investigation Unit promotes itself as “the state’s preferred and trusted forensic investigation and litigation agency”. But a year after the Special Tribunal’s May 2021 final order setting aside the Eastern Cape health department’s so-called “scooter ambulance” tender to procure 100 motorcycles with side-cars to service rural clinics, Fabkomp continues to raise concerns about the SIU’s investigative and litigation processes.

Fabkomp is the Qonce-based industrial firm with an enviable track record of providing modified eRanger motorcyles with sidecars for international healthcare and humanitarian work and which bore the brunt of the SIU’s problematic process.

First, SIU East London forensic investigator Glenn Muller made the most elementary mistake of misreading the tender adjudication document in the highly touted probe.

He alleged the adjudicators were irrational to give Fabkomp a score of 100% for bid responsiveness, because the company had not included International Organisation for Standardisation (ISO) certification.

Muller had made a stark error of transposing the two bidders, marking Fabkomp as having failed to submit the compliance documents, instead of the actual defaulting bidder Zencare.

In a supplementary affidavit, Muller sought to correct his “bona fide error” which he blamed on the urgency required to read through the tender documents.

While he now said allegations of collusion between health and Fabkomp could not be sustained, he insisted the department “treated the company with favouritism”, and that there were “clear indications” of ulterior motives and possible collusion” in the bid award.

SIU spokesperson Kaizer Kganyago told me in response to a recent query the correction of Muller’s error did not cure Fabkomp’s “irregular and unlawful” procurement.

Fabkomp directors Brian Harmse and Mike du Toit had charged in submissions to the tribunal that Muller purposefully mis-stated the contents of the tender documents because he bore a grudge against them dating back almost two decades, for ribbing him about being duped in an online scam.

Kganyago said the insinuation that Muller acted in bad faith was “spurious and utter nonsense”. He dismissed as “petty”, a claim that Muller’s commissioning of SIU witness affidavits constituted a conflict of interest and contravened official regulations under the Commissioner of Oaths Act.

Days before the special tribunal was due to hear argument in the SIU’s application for an interdict stopping implementation of the tender pending its review, SIU principal lawyer Luvuyo Ndunyana agreed to remove Fabkomp from the ambit of the interdict application.

“fair enough” for Fabkomp to be heard on nixing of agreement

SIU counsel Monare Makoti

This was a critical development, arising from the health department’s failure to issue a purchase order to Fabkomp, and the firm’s undertaking to fully co-operate with the SIU probe, and not to accept its appointment through the tender.

Ndundana prepared and shared with Fabkomp’s lawyers a draft order reflecting this agreement, which would be presented to the tribunal by SIU counsel Monare Makoti, with Fabkomp’s legal representatives not present in the hearing.

But tribunal judge Lebogang Modiba refused to grant the order in terms of the agreed draft, expressing concern that Fabkomp was in the process of modifying 10 motorcycles to fulfil the order, an allegation Harmse’s attorney Neil Ristow said “was not the case”.

The day before, special tribunal spokesperson Selby Makgotha had told Power FM that “6 or 10” scooters had been delivered, an allegation Fabkomp had already repeatedly discounted.

Makoti capitulated to the judge, saying he would explain Modiba’s position to Fabkomp’s lawyers: “I have no problem with that and I am sure none of the lawyers for the other parties have a problem,” he said, according to a recording of the hearing made available to me.

Modiba said even if Fabkomp objected to her ruling, “they can always come back to make a case, to argue why the order originally agreed between the parties should have been awarded”.

“very sympathetic to the bona fide tenderer… no case of any wrongdoing”

Tribunal judge lebogang modiba

Makoti’s response to my suggestion that Fabkomp should have been given a hearing before the judge handed down an order in their absence and contrary to what they understood and had agreed would be moved in the tribunal, was “fair enough”.

Kganyago outright denied the SIU had any knowledge of the agreement.

Ristow said although Fabkomp was unhappy with Modiba’s ruling to keep the firm subject to an interdict, “we decided to let the order remain in place… considering amongst other things, legal costs, time” and that challenging the ruling would further delay finalisation of the tender review.

Later, in a recorded virtual “in chambers” discussion with counsel, Modiba tore into Fabkomp counsel Dawie Kotze when the firm asked the judge if she would still provide reasons for her final May 2021 order in the matter.

Modiba had told counsel in an earlier exchange that she was “very sympathetic to the bona fide tenderer” Fabkomp,  and that “no case of any wrongdoing has been made against” Harmse.

She also expressed concern that “no person who is implicated should be treated in that manner” referring to Harmse’s unsuccessful efforts to get the SIU to correct the errors in Muller’s initial tribunal presentation and to meet with him.

For these reasons and in the interests of public accountability, the judge said she intended to provide a full judgment on the matter rather than an order.

But, after receiving a letter from Ristow seeking reasons for her final order, Modiba walked back her voluntary undertaking, saying she was “actually taken aback by the request for reasons”.

Makgotho said Modiba was constrained from responding to media questions due to the judicial code of conduct.

If Fabkomp’s view was Modiba had treated it unjustly, he said it should have resorted to the judicial remedies available under the tribunal rules. These would have included applying for a rescission of the interdict and final tribunal orders handed down, or requesting the presiding judge to provide reasons for both orders – an ironic suggestion, given that was exactly what Ristow requested.

“The perpetuation of an injustice is a very serious accusation to make against a judge in respect of an order she granted. Therefore, it ought not to be lightly made,” Makgotha said.

A criminal case against Fabkomp initiated by the SIU was withdrawn by prosecutors in December 2021, as no money was paid to the company, government suffered no prejudice and there was no criminality, Hawks provincial spokesperson Capt Yolisa Mgolodela confirmed.

– By Ray Hartle

A version of this article appeared in Daily Dispatch.

SIU’s gaffe, nixing of lawyers’ deal in ‘scooter clinic’ probe
%d bloggers like this: