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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy
IN THE SPECIAL TRIBUNAL ESTABLISHED IN TERMS OF
SECTION 2(1) OF
THE SPECIAL INVESTIGATING UNIT AND
SPECIAL TRIBUNALS ACT 74 OF 1996
(REPUBLIC OF SOUTH AFRICA)
CASE NO: MP02/2025 & MP03/2025
In the matter between:
SPECIAL INVESTIGATING UNIT Applicant
and
MEMBER OF EXECUTIVE COUNCIL First respondent
RESPONSIBLE FOR HEALTH IN THE
MPUMALANGA PROVINCIAL
GOVERNMENT
THE HEAD OF DEPARTMENT: Second respondent
MPUMALANNGA DEPARTMENT OF
HEALTH
TARK GROUP PTY (LTD) Third Respondent
(Formerly known as Tuwo Rhodesia (Pty) Ltd)
(Registration Number: 2019/4507175/07)
BONELELA MGUDLWA Fourth Respondent
(ID No: 83[...])
KATLEHO OHARA MOKONYANE Fifth Respondent
(ID No: 92[…])
JUDGMENT
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MAKHOBA J
[1] The parties agreed that, this T ribunal hear both matters together because
the parties are the same and both matters are similar in nature.
CASE NUMBER: MP02/2025
[2] In regard to the above case number: MP02/2025 t he Special Investigating
Unit (SIU) seeks to review and set aside contract for the procurement of 60 000
surgical masks used during Covid-19 pandemic. Further t he SIU seeks to
recover public funds wrongfully paid by the state.
[3] The procurement was initiated by the Mpumalanga Department of Health
in April 2020. The third Respondent was awarded the contract on the 8 th April
2020.
[4] Authorized by the Presidential Proclamation R23 of 2020, the SIU avers
that, the procurement flagrantly violated the constitutional and statutory
procurement framework designed to ensure fairness, competitiveness,
transparency and cost- effectiveness.
[5] Moreover, the Applicant argues that the process unlawfully deviated from
mandatory transversal contract, it bypassed internal bid committees and
involved a supplier that was neither accredited for medical supplies nor licenced
by SAHPRA to distribute medical services.
[6] In addition, it is argued that, the directors of the third respondent (Tark
Group Pty Ltd) failed to disclose material conflict of interest.
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CASE NUMBER: MP03/2025
[7] Under case number: MP03/2025, the A pplicant seeks to review, declare
unlawful & invalid and set aside contracts for the procurement of 150 000 type
5 protective medical jumpsuits during Covid- 19 pandemic. The Applicant seeks
to recover public funds wrongfully paid by the state.
[8] In this matter the parties are the same as in case number MP02/2025. On
the 08 April 2020, the D epartment issued a binding promissory letter of award
to the third Respondent (Tark Group Pty Ltd) one day before the official closing
date.
[9] The Department paid the third Respondent the total sum of
R13 297 500.00 for the jumpsuits
[10] The Applicant submit that this procurement flagrantly violated the
constitutional and statutory procurement framework designed to ensure fairness,
competitiveness, transparency, and cost -effectiveness. The process unlawfully
deviated from mandatory transversal contracts and an existing fixed-term contract
with Safarmex Medical Logistics, bypassed internal bid committees and involved a
supplier that was neither registered on the Central Supplier Database (CSD) for
medical supplies and most critically, did not hold the requisite SAHPRA licence to
distribute medical devices. Furthermore, the directors of T ark Group failed to
disclose material conflicts of interest.
[11] The Department is not opposing these applications and filed notice s to
abide.
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ISSUES
[12] The issues that arise and argued in these applications are:
12.1 Whether condonation should be granted for the failure by the Applicant
to act expeditiously in launching these applications to set aside the contracts and
whether the undue delay defence by the Respondents can dispose of the entire
applications.
ON CASE NUMBER MP02/2025
12.2 Whether t he third R espondent did not hold the SAHPRA licence at the
time of distribution and this rendered its participation in the procurement not
merely irregular but unlawful.
12.3 Whether non- compliance with the Preferential Procurement Policy
Framework Act 5 of 2000 and its 2017 Regulations.
12.4 Whether t he Department did not show that it attempted to procure the
masks from the multiple suppliers listed for surgical masks in Annexure A of
National Treasury Instruction Note No. 8 before resorting to a deviation.
12.5 Whether t he third Respondent was registered on the CSD under
commodity codes for “water supply, sewerage, waste management”. It was not
registered for the supply of medical devices, equipment or PPE.
12.6 Whether Paragraph 19.2 of the internal supply chain management (SCM)
policy prohibits the delivery of goods before an official purchase order is
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issued. In this matter goods were delivered on 20 or 23 April 2020 based on the
promissory letter, the purchase order was issued only on 04 May 2020
12.7 Whether the fourth Respondent had links with the South African Airways
and the fifth R espondent is the daughter of former Minister Nomvula
Mokonyane. These relationships created a potential conflict of interest. Both the
fourth and fifth R espondent are directors of the third R espondent. The fourth
and fifth Respondents did not disclose these relationships.
12.8 Schedule and quotation approval payment pack, were generated by
Safarmex weeks after the award and delivery.
ON CASE NUMBER MP03/2025
The issues are as follows:
12.9 The Department issued a binding Promissory Letter of award to the third
Respondent on 08 April 2020 a day before the official closing date.
12.10 The Department received quotations from the third R espondent alone.
The was no Bid Evaluation Committee (BEC) or Bid Adjudication Committee
(BAC) as required by the Treasury Regulation 16A. 6.2 and 16A.6.3.
12.11 The third R espondent was not registered to supply medical devices,
medical equipment or personal protective equipment. The third R espondent did
not hold a SAHPRA medical device establishment licence.
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12.12 Goods were delivered on a promissory letter with a purchase order only
issued on 04 May 2020.
12.13 Failure to disclose material conflicts of interest.
12.14 Documents were generated by Safarmex on the 04 May 2020, weeks after
the award and delivery.
RESPONDENTS DEFENCES
[13] Counsel for the Respondents abandoned the defence of prescription.
RESPONDENTS SUBMITTED THE FOLLOWING DEFENCES.
14.1 No statutory requirement existed for the third Respondent to hold a
SAHPRA licence.
14.2 The non-disclosure of interest had no causative effect on the procurement
outcome.
14.3 Goods were delivered, accepted and utilised. Their quality and value are
not disputed and the review was instituted years after full performance. Our
courts do not permit the state to retain the benefit of performance while
recovering the price.
14.4 Even where invalidity is established restitution may be refused where it
would serve no legitimate remedial purpose or would operate unjustly.
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14.5 The claim for disgorgement is wholly unsubstantiated. The A pplicant
does not identify what “Profits” were earned and how they are calculated.
14.6 It would not be just and equitable to order disgorgement in the light of the
elapsed time since the third Respondent has already provided the services.
DELAY BY SIU
[15] In assessing whether the delay in bringing these proceedings should be
condoned and the merits of the case be determined, a number of factors require
consideration. The Constitutional Court in Buffalo City has addressed the
difference between PAJA and legality reviews in relation State self- review.1
Whilst this case does not fall into the category of State self- review, the
principles on delay nonetheless apply. It is necessary, before addressing these
issues directly, to consider the assessment of delay in a legality review vis- à-vis
a PAJA review. In both instances, a discretion has to be exercised whether or
not to overlook a delay. The majority of the court in Buffalo City confirmed that
the issue of reasonableness applies in both a PAJA delay and a legality review
delay. Of course, the application of the reasonableness threshold differs between
the two. A legality review involves a broader discretion. Theron J stated in
Buffalo City:
“There must however be a basis for a court to exercise its discretion to overlook
the delay. That basis must be gleaned from the facts made available or
objectively available factors”
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1 Buffalo city Metropolitan v Asla Construction (Pty) Ltd 2019 (4) SA 331 (CC) (2019 (6) BCLR 661; [2019] ZACC 15)
para 43-53
2 Id par 53
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[16] The Applicant submits that it completed and finalised this application
within a reasonable time.
[17] Investigations by the SIU into Covid- 19 procurement was vast and
complex. The investigation involved many challenges like collecting and
analysing voluminous records from multiple state Department and suppliers.
[18] The SIU had to unravel intricate schemes designed to bypass procurement
control. Moreover, resource constraints.
[19] The Applicant submits that based on good cause and the prospects of
success the Tribunal should grant condonation.
[20] The Respondents oppose the granting of condonation in the strongest
terms. They point out that this application should be considered in accordance
with the time frames of PAJA as it is administrative action and the review
should have been instituted within 180 days.
3 The Applicant contends that the
review application is brought in terms of the Constitution more particularly
section 1(c), 2 and 271 of the Constitution. In this case it is unnecessary to
decide whether PAJA applies or legality review, as the delay is manifestly
lengthy.
[21] On behalf of the Respondents it is submitted that the review was
instituted outside the 180-day period.
3 Section 7 (1) PAJA
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[22] It is further submitted that the Applicant alleges difficulties with the
office of the State Attorney and later with private attorneys. According to the
Respondents these difficulties must have been foreseen by the Applicant.
[23] The Respondent argue that the applicant did not apply for an extension of
time under section 9 of PAJA. The existence of an explanation for delay cannot
substitute for a section 9 application.
[24] In the absence of such an application, it is argued that the Tribunal is not
vested with the authority to condone the delay regardless of the explanation
advanced. It is further argued that on this ground alone, the application is fatally
defective and falls to be dismissed.
[25] In my view, The Tribunal Rules do not prescribe time periods for the
issue of process from date of alleged delinquency nor finalisation of the
investigation. This is not a case of non- compliance within a time period
envisaged by the Tribunal Rules. There are no time periods legislated. This
however does not absolve an applicant from issuing process expeditiously. The
requirement of the “soon as possible” principle applies to a legality review. It is
necessary therefore to consider whether the delay was reasonable taking all the
circumstances into account.
[26] I am mindful of all the submissions made by both parties on the question
of delay. Guidance is given by Cameron J in Buffalo City where he stated:
“Even where a delay is found to be unreasonable, however, our precedents
establish that a court retains a discretion to overlook the delay provided it is in
the interests of justice to do so. This stage of procedural enquiry should not take
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place in a ‘vacuum’. It must instead involve weighing (a) the effect of the delay
on the parties; and (b) the nature of the impugned decision.” 4
[27] In applying all the principles referred to, I take all the factors into
account. I find the delay was not wilful but exacerbated by the many factors
referred to above. Clearly the various state entities were under- resourced at the
time. There was no pre-verification in relation to their inefficiencies. The lack
of resources and inefficiencies are self -evident and not obfuscated by the
Applicant. The applicant has been frank with the Tribunal. The veracity of these
submissions can be clearly corroborated from the facts presented.
[28] I do not discern any wilfulness on the part of the Applicant. It was caught
up in a rather unique set of circumstances. The state of the National Disaster
was an unusual time in our country and this seems to have resulted in some of
the factual consequences in launching this application.
[29] In Munsasmy,
5 Weiner J in weighing up factors pertaining to
condonation referred to the Constitutional Court case in Ferrris v FirstRand
Bank Ltd where it was held that:
“(L)ateness is not the only consideration in determining whether condonation
may be granted…(T)he test for condonation is whether it is in the interest of
justice to grant it. As the interest- of-justice test is a requirement for
condonation and granting leave to appeal, there is an overlap between these
4 Buffalo City Metropolitan Municipality v Asla construction (pty ) Ltd 2019 (6) BCLR 661 (cc) at
para 121
5 Munsamy and Another v Astron Energy (Pty) Ltd and others 2022 (4) SA 267 (GJ) para 43
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enquiries. For both enquiries, an applicant’s prospects of success and the
importance of the issue to be determined are relevant factors.”6
[30] It is trite that the delay must be judged together with the merits of the
case. The Constitutional Court in Geldenhuys v National Director of Public
Prosecution and Others held that:
“(t)he general rule is that non -compliance with the rules of this court will be
condoned when it is in the interests of justice to do so.”
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[31] This is a matter that requires finalisation and the proper analysis of the
SIU’s cause of action. Its prospects of success must be fully examined, and the
interest of justice considered. In other words, the A pplicant’s prospects of
success are not wholly without merit and an analysis is necessary to assess
whether the relief sought is appropriate in accordance with our jurisprudence. It
is also in the interests of justice to grant condonation for the reasons mentioned
above in relation to the many challenges brought about by the state of National
Disaster. The situation is linked to the under- resourced State Attorney during
the State National Disaster which weighed down its resources. It must be
emphasised that but for the State of National Disaster this inordinate delay
would not have found success in relation to an undue delay defence. In the
result I grant the Applicant condonation for the late filling of the review
application.
6 Ferris and another v FirstRand Bank Ltd 2014 (3) Sa 39 (CC) Para 10
7 Geldenhuys v National Director of Public Prosecutions and Others 2009 (2) SA 310 (CC) (2009 (5)
BCLR 435; [2008] ZACC 21) para 21.
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[32] This Tribunal is of the view that the A pplicant succeeded to prove the
following on both matters MP02/2025 and MP03/2025.
32.1 The procurement process failed to adhere to the mandatory constitutional
and statutory framework governing public procurement.
32.2 The process was characterised by multiple irregularities which the
respondents failed to dispute.
32.3 There was no BEC or BAC meeting to adjudicate the quotations as
required by Treasury Regulation 16A.6.2 and 16A.6.3 of the awards.
32.4 The Department’s acceptance of non- compliant bids vitiated the legality
of rewards.
[33] In Special Investigation Unit v Nozihle Construction and Projects CC and
others8 it was held that a contract for the supply of surgical masks without
SAHPRA medical device establishment licence is unlawful and void ab initio.
[34] I am therefore of the view that the contracts in both matters are
constitutionally invalid and void ab initio. The contracts in both matters are
reviewed and set aside.
[35] I am further of the view that the corporate vale must be pierced in respect
of the two directors and the disgorgement of profits unlawfully derived by the
Respondents from the void contracts.
8 Case number M05/2023, delivered on 29/09/2025
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[36] I make the following Order.
36.1 The draft orders marked “X” and “Y” are made the order of the court.
MAKHOBA J
MEMBER OF THE SPECIAL TRIBUNAL
Appearances:
Attorneys for the Applicant: Malatji & Co Attorneys
Counsel for the Applicant: Adv T Mosikili
Attorneys for the First Respondents: N. Z Mtshabe Inc
Counsel for the First Respondents: Adv M Mphaga SC
Date of hearing: 19 February 2026
Date of judgment: 25/3/2026
Mode of delivery
This judgment is handed down by email transmission to the parties’ legal
representatives and uploading on Caselines . The time for delivery is deemed to
be 12H00.