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IN THE SPECIAL TRIBUNAL ESTABLISHED IN TERMS OF SECTION 2 (1) OF

THE SPECIAL INVESTIGATIONS UNIT AND
SPECIAL TRIBUNALS ACT 74 OF 1996

(REPUBLIC OF SOUTH AFRICA)

CASE NUMBER: GP 19/2021

In the matter between:

SPECIAL INVESTIGATING UNIT First Applicant

NATIONAL HEALTH LABORATORY SERVICE Second Applicant

And

THABISO HAMILTON NDLOVU First Respondent

ZAISAN KAIHATSU (PTY) LTD Second Respondent

REGISTRAR OF DEEDS, PRETORIA Third Respondent

BUGATTI SECURITY SERVICES AND PROJECTS (PTY) Fourth Respondent

LTD

VICTOR NKHWASHU ATTORNEYS INC Fifth Respondent

ZAHEER CASSIM NO Sixth Respondent

COMMISSIONER OF THE SOUTH AFRICAN REVENUE Seventh Respondent

SERVICES

AKANNII TRADING AND PROJECTS (PTY) LTD Eighth Respondent

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HAMILTONN HOLDINGS (PTY) LTD Ninth Respondent

HAMILTONN PROJECTS CC Tenth Respondent

MOK PLUS ONE (PTY) LTD Eleventh Respondent

ABOMPETHA (PTY) LTD Twelfth Respondent

FELIHAM (PTY) LTD Thirteenth Respondent

JORITANS LOGISTICS (PTY) LTD Fourteenth Respondent

PERSTO (PTY) LTD Fifteenth Respondent

KGODUMO MOKONE TRADING ENTERPRISE (PTY) Sixteenth Respondent

LTD

JUDGMENT

Summary
Procurement law – review of procurement transactions and payments for the supply
of personal protective equipment – non-compliance with emergency procurement
procedures – remedy - condictio ob turpem vel inustam causam – forfeiture of
preserved assets.

INTRODUCTION
[1] The applicants, the Special Investigating Unit (SIU) and the National Health
Laboratory Service (NHLS) have applied to review and set aside procurement
transactions for the supply of personal protective equipment (PPE) between the NHLS
and the fourth, ninth and eleventh to sixteenth respondents (impugned transactions)
and payments made to these respondents in terms of the impugned transactions
(impugned payments) on the basis that they are irregular and unlawful and therefore,
unconstitutional. It also seeks consequential relief for the recovery of monies the
respondents received in relation to the impugned payments.
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[2] The first respondent Hamilton Ndlovu, the fourth respondent Bugatti, the ninth
respondent HamiltonN Holdings, the tenth respondent Hamilton Projects, the eleventh
respondent Mok Plus One, the twelfth respondent Abompetha, the thirteenth
respondent, Feliham, the fourteenth respondent Joritans, the fifteenth respondent
Persto and the sixteenth respondent Kgodumo are opposing the application. For
convenience, I jointly refer to these respondents as the opposing respondents. I
interchangeably refer to these respondents as required by the context, as frontinging
companies.

[3] Hamilton Ndlovu is jointly opposing the application with HamiltonN Holdings,
Hamilton Projects and Feliham. For convenience, I jointly refer to these parties as
Hamilton Ndlovu and the companies he represents. This reference includes Bugatti
which was at all times controlled by Hamilton Ndlovu.

[4] The fifth respondent, Victor Nkhwashu Attorneys Inc (VNA Inc) abides the
application and has filed an explanatory affidavit. I deal with it later in the judgment.

[5] Zaisan Kaihatsu and Akannii are not opposing the application. I deal with the
case against these entities later in the judgment.

[6] Joritans is the only respondent who filed its answering affidavit timeously.
Abompetha, Mok Plus One, Bugatti, Persto and Kgodumo seek condonation for the
late filing of their answering affidavits. The applicants abide the Tribunal ruling on this
request.

[7] Hamilton Ndlovu and the companies he represents filed their answering
affidavit flagrantly late. They did not even apply for condonation. The applicants
expressed a willingness to proceed regardless of the late filing of this answering
affidavit. I agree that it is in the interest of justice that the application is determined on
the basis of all the papers as filed.
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[8] All the opposing respondents accept the applicants’ version that when NHLS
officials ordered PPEs supplies from the fronting companies, they failed to comply with
the applicable procurement procedures. Although Hamilton Ndlovu and the companies
he represents takes issue with what they allege is a delay in instituting the review
application, ultimately they take no issue with the impugned transactions being
reviewed and set aside for lack of compliance with the applicable prescripts. Although
Hamilton Ndlovu did not answer to the allegations of fraud against him and the
companies he represents ad seriatim, he largely denies the allegations. He also
disputes as alleged by the applicants, that the impugned payments were without cause
because no PPEs were delivered to the NHLS. He asserts the right to recover all the
costs he and the companies he represents incurred when they supplied PPEs to the
NLHS in accordance with the no profit no loss principle enunciated in All Pay.1

[9] The rest of the frontinging companies have tendered repayment of the amounts
retained or Hamilton Ndlovu paid them from funds deriving from the impugned
payments. They plead that they should not be held liable to the HNLS for the full
amount the applicants seek to recover in these proceedings jointly and severally with
Hamilton Ndlovu and the companies he represents.

[10] I start by outlining the background facts. I deal with the question whether the
applicants unreasonably delayed to bring this application. I then deal with the merits
of the review application and the consequential relief, drawing guidance from the
applicable legal principles and authorities. I make findings as appropriate. I conclude
the judgment by making an appropriate order.

BACKGROUND FACTS
[11] In early 2020, the NHLS adopted emergency procurement procedures in
response to the outbreak of the Covid-19 pandemic. It centralized the procurement of
PPE supplies to its Head Office. The approved emergency procurement process

1
See AllPay Consolidated Investment Holdings (Pty) Ltd and Others v CEO of the South African Social Security
Agency and Others 2014 (1) SA 604 (CC), AllPay Consolidated Investment Holdings (Pty) Ltd and Others v CEO of
the South African Social Security Agency and Others 2014 (4) SA 179 (CC).
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entailed an RFQ procedure in terms of which the NHLS head office-based buyers
contacted suppliers requesting competing quotations for the required PPE supplies.

[12] The opposing respondents submitted quotations to supply PPEs to the NHLS
pursuant to which the NHLS issued purchase orders and purchased PPE from the
frontinging companies. Between 31 March 2020 and 29 June 2020, the NHLS made
impugned payments to the frontinging companies in the amount of R172 742 175.00.

[13] Some of the proceeds from the impugned payments and the assets acquired
with them are subject to the interdicts granted by the Tribunal. Prior to the granting of
the interdicts, SARS obtained an order in the High Court, preserving assets of
Hamilton Ndlovu, HamiltonN Holdings, HamiltonN Projects, Feliham, Mok Plus One
and Abompetha that all derived from the impugned transactions. The applicants have
included these assets in the scope of the interdicts granted by the Tribunal. None of
the respondents opposed the interdicts.

DELAY IN INSTITUTING THE REVIEW APPLICATION

[14] Although on the one hand Hamilton Ndlovu has conceded the review, on the
other hand, he complains about the unreasonable delay in the institution of the review
application, contending that it is fatal to the application. He complains of prejudice in
the delay but has not set out the manner in the companies he represents and he have
been prejudiced. In the event that the Tribunal does not uphold this point, he contends
that it ought to consider it when formulating an appropriate remedy. However, he does
not state what effect the purported delay ought to have on the just and equitable
remedy.

[15] The review application was initiated on 06 October 2021, approximately one
year and five months after the respondents were awarded the impugned transactions.
It was preceded by an extensive investigation involving all the NHLS staff who effected
the impugned transactions, the opposing respondents and other persons and entities
who benefited from funds deriving from the impugned payments. Three interdicts to
preserve assets and funds acquired from the impugned transactions and payments
were obtained prior to instituting the review application.
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[16] I find that the applicants did not unreasonably delay to institute the review
application. Therefore, this grounds of opposition falls to be dismissed.

THE MERITS
[17] Section 217(1) of the Constitution requires organs of state to contract for goods
and services in accordance with a system which is fair, equitable, transparent,
competitive and cost-effective. The Public Finance Management Act (PFMA) and
various procurement regulations developed in terms of section 76 of the PMFA were
promulgated to give effect to section 217(1) of the Constitution.

[18] Treasury Regulation 16A6.4, regulates the procurement of goods and services
in an emergency. It is resorted to when, due to an emergency, it is impractical to invite
competitive bids and the accounting authority has approved a deviation from specified
normal procurement processes and requirements. When approving a deviation, the
accounting authority is required to record the deviation and reasons therefore. Even
when procuring in terms of an approved deviation, the procurement process must still
be fair, equitable, transparent and cost effective.

[19] The SIU alleges that the impugned transactions stem from an egregious abuse
of the NHLS emergency procurement procedures and that the impugned transactions
were carried out by fraud. Although Hamilton Ndlovu accepts the SIU’s version in
relation to the process followed by NHLS officials when they ordered and purchased
PPE supplies from him and the fronting companies. He contends that the impugned
transactions fall to be reviewed solely on the conduct of the NHLS employees. He
seeks to evade accountability on the basis that he has no knowledge of internal NLHS
procurement procedures. For the reasons I set out later in this judgment, I find that the
emergency procurement procedures adopted by the NHLS to procure PPE to combat
the Covid-19 emergency were fraudulently exploited by Hamilton Ndlovu and the
fronting companies. Therefore, not only are the impugned transactions liable for review
on account of non-compliance with the prescribed procurement procedures by NHLS
officials, I also find culpability on the part of Hamilton Ndlovu and the fronting
companies.
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THE REMEDY
[20] The applicants seek relief against the respondents on an alternative basis.

[21] In the event that the impugned transactions are set aside, the applicants allege
that since the NHLS was impoverished and the opposing respondents enriched
thereby, they are liable to the NHLS jointly and severally, in the full quantum of the
impugned payments on the basis of the condictio ob turpem vel inustam causam,
alternatively, the condictio sine causa, alternatively the condictio indebitti.

[22] The applicants contend that it is incumbent upon the opposing respondents to
allege and prove the defence of non-enrichment to contradict the SIU’s findings that
goods corresponding to the value of the amounts paid were never received by the
NHLS.

[23] In the alternative, the applicants seek an order that it is just and equitable for
the respondents to repay to the NHLS the profits gained from the impugned
transactions, made up of the difference between the impugned payments and the
amounts they expended to acquire PPE supplies for the NHLS. Hamilton Ndlovu and
the companies he represents also seek such an order. Although not specifically
pleaded, it was contended on their behalf during oral argument that they ought to be
afforded an opportunity to submit a statement and debatement of account. The
applicants opposed this request, contending that these respondents ought to have
made out a case for recovery of their input expenses in their answering affidavit. They
failed to do so.

THE CONDICIO OB TURPEM VEL INUSTAM CAUSAM

[24] The condictios relied on by the applicants are enrichment claims. To succeed
under these claims, the applicants must prove that payment of money was made to
the respondents, the impugned transactions and payments were either unlawful or
without a cause and that the respondents were enriched.

[25] To succeed under the condictio ob turpem vel inustam causam, the applicants
must allege and prove that the impugned transactions and payments are not only
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unlawful due to non-compliance with the applicable constitutional, statutory and

regulatory requirements, but that there is turpitude on the part of the opposing
respondents or they are in possession of funds deriving from the impugned payments
with knowledge of the turpitude.2

[26] It is common cause that the impugned payments were made. All the
respondents dispute that there is turpitude on their part.

[27] Abompetha, Mok Plus One, Persto and Kgodumo have tendered the amounts
that they retained or Hamilton Ndlovu paid to them after they received the impugned
payments from the NHLS. Ostensibly, they concede that they were enriched by these
amounts. They contend that they should not be held jointly and severally liable with
Hamilton Ndlovu for the full amount claimed.

[28] Bugatti was established by Hamilton Ndlovu. He subsequently resigned as a

director in Bugatti and appointed Theo Karabo Kgame (Kgame) whom he had
mentored and later became his employee in HamiltonN Holdings. Apart from his salary
as an employee in HamiltonN Holdings, Kgame did not receive any benefit from funds
deriving from the impugned payments NHLS made to Bugatti.

[29] Hamilton Ndlovu has not seriously disputed the allegations of turpitude against
him and the companies he represents. He has offered a long explanation regarding
how he became involved in procurement for PPE supplies. It bears no relevance to
the applicants’ claims against him and the companies he represents.

[30] Hamilton Ndlovu was the director of HamiltonN Holdings, and his wife was the
director of Feliham. He used the fronting companies to procure PPE supplies to the
NHLS. Although he barely denies making false representations to any NHLS officials
regarding his involvement in the fronting companies, on his own version and on the
version of the fronting companies, they were dormant. He actively marketed them.

2
First National Bank v Perry N.O. [2001] 3 All SA 33 (A) at [25].
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None of the fronting companies were in the business of or had any track record in PPE
supplies. NHLS officials bent the rules to favour the fronting companies. According to
NHLS officials who offered explanations regarding how these unqualified companies
came to supply PPEs to NHLS, in each of the cases of the opposing respondents, an
unidentified person was said to have dropped off a business card on an unspecified
date and on the basis of this introduction” was invited to quote and orders placed with
the fronting companies. There is no evidence anywhere on the record that the NHLS
officials invited quotations or granted contracts to any other supplier on the basis of
them simply dropping off a business card.

[31] On the version of Bugatti, Mok Plus One, Persto and Kgodumo, none of them
submitted quotations to the NLHS or were in any way involved in the procurement of
PPE supplies to the NLHS. Hamilton promised to procure tenders on their behalf. It
was for that reason that they gave him control of their companies. Therefore, the
directors of the fronting companies allowed Hamilton Ndlovu to use their companies
as a front to do business with the NHLS. He submitted quotations on behalf of the
companies. When orders were placed, he supplied PPEs on their behalf. Since he
was not a director or employee of the fronting companies, he intentionally concealed
his involvement in the companies. It is under these circumstances that NLHS approved
the quotations submitted by these companies and issued them with purchase orders.
He emptied the bank accounts of the fronting companies as soon as NHLS made the
impugned payments to these companies. He has not disputed this version.

[32] HamiltonN Holdings was ostensibly invited to quote telephonically instead of by

email. Its quotation was approved prior to the closing date. The impugned transactions
with Joritans and Kgodumo were effected without any other bidders being invited to
quote. PPEs were procured from Feliham while on the restricted suppliers’ list.

[33] On Hamilton Ndlovu’s version, his company, HamiltonN Holdings sourced

PPEs and was the onward selling entity to the other opposing respondents. Therefore,
Hamilton Ndlovu traded PPEs between the fronting companies as a result of which
they supplied PPEs to the NHLS at excessive prices when the same goods were
available from other supplies at a much lower price.
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[34] Kgodumo supplied to the NHLS gloves bought from Mok Plus One for R5.10.
The same gloves were available from other suppliers at R0.95c. Other bidders had not
been invited to quote. There was no instruction to buyers to procure the latex gloves
bought from Abompetha for R4.99. The gloves were available from another supplier
at R0.70c. Gloves were purchased from Bugatti for R4.95 without comparative
quotations, when they were available from another supplier for R0.70c.

[35] On the authority in Swifambo Rail Leasing3, these inexplicable actions by NHLS
officials to benefit Hamilton Ndlovu through HamiltonN and the fronting companies
justify an inference of corruption. This inference is further supported by the fact that
almost 90% of the funds acquired through the impugned payments made its way to
accounts held or controlled by Hamilton Ndlovu or members of his family and the bulk
of the funds was spent on acquiring assets and on luxurious consumption. The SIU
investigation revealed that in just a few months, Hamilton Ndlovu spent tens of millions
of Rands of the funds deriving from the impugned payments on cars (R18 million),
houses (R38 million), furniture and fittings for the houses (R5.8 million). He placed
approximately R50m in investment accounts. He withdrew approximately R16 million
as cash.

[36] While the applicants allege that the payments were made sine causa in that the
respondents were paid without delivering PPE supplies to the NLHS, they also allege
that there are delivery notes reflecting unidentifiable signatures, quantities not
matching and different quantities reflected on delivery notes bearing the same
reference number. They allege that there is no evidence from any of the fronting
companies establishing that PPE was delivered to the NHLS in the quantities specified
in the purchase orders. As a result of the corrupt involvement of NHLS officials no
reliance can be placed on delivery notes signed by NHLS’ officials purportedly
confirming delivery of PPE supplies.

3
Swifambo Rail Leasing (Pty) Ltd v PRASA 2020 (1) SA 76 (SCA) [23]- [24].
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[37] Hamilton Ndlovu contends that PPE items were delivered to the NHLS. He
places reliance on the finding made following an arbitration involving the NHLS Chief
Financial Officer, that the impugned payments were only made after PPEs were
delivered to the NLHs. The rule in Hollongton v Hewthorn4 may not be applicable under
these circumstances, rendering this evidence admissible in these proceedings.5

[38] What the applicants are effectively placing in issue is whether the PPE was
delivered to the NHLS in the quantities specified in the purchase orders. They should
have placed evidence to this effect, showing discrepancies between what was
purportedly delivered and what was actually delivered. I am unable to find on their
version that there was no delivery of the PPE supplies at all. Their investigations have
unearthed from the respondents’ bank account payments for sourcing PPE supplies
in the amount of R13 891 253.87. They have thus not established that the respondents
have been enriched by this amount as on their version, this amount did not benefit the
respondents. It therefore falls to be deducted from the amounts the respondents are
held liable for.6

Deal with joint and several liability of the other respondents

[39] The SIU seeks an order holding Hamilton Ndlovu, the companies he
represents, Abompeta, Mok Plus One, Bugatti, Kgodumo, Persto, and Joritans jointly
and severally liable to the NLHS for the amount of R172 742 175.00. Although the
payments the NHLS made to Abompeta, Mok Plus one, Kgodumo, Persto, and
Joritans are undisputed, the applicants have not established that these entities were
enriched by this amount. With the exception of Joritans, on their version, which the
applicants do not dispute, these companies have only been enriched to the extent of
the amounts they retained or Hamilton Ndlovu paid them from the impugned payments
NHLS made to them. Therefore, the liability of these companies stands to be limited
to the respective amounts, which they have tendered to repay to the NLHS.

4
Hollington v F Hewthorn and Company Ltd 1943 ALL ER 35.
5
The Law Society of the Cape of Good Hope and Heinrich Nel (054/11) [2011] ZASCA 200 (23 November 2011)
at paragraph 11.
6
See Perry N.O. at fn 2.
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[40] However as far as Hamilton Ndlovu and the companies he represents are
concerned, the applicants have established a basis to hold them jointly and severally
liable for the amount of R172, 742, 175.00, less the cost of sourcing the PPEs and
less the amounts retained by Abompeta, Mok Plus One, Persto and Kgodumo.
Hamilton Ndlovu controls the companies he represents (including Bugatti) and
channeled funds through them for his benefit and that of his family members.

Joritans
[41] Joritans was established by Mr. Mbewe with the assistance of his daughter and
consultants on 01 February 2016. Its main object is to export South African products
to neighbouring countries. In 2018, Mr. Lizo Maxwell Lowa (Mr Lowa) and Mr. Luiborn
Dorn Ndlovu (Dorn) were appointed as Directors of Joritans. Since Mr. Mbewe and
Mr Lowa are in fulltime employment with third party companies, they authorised Dorn
to manage Joritans’ business affairs. He also controls its bank account. To their
knowledge, Joritan was not profitable. Mbewe only became aware that Dorn colluded
with Hamilton Ndlovu to use Joritans to supply PPEs to the NHLS in September 2020.
Dorn’s conduct was therefore fraudulent and malicious on Joritans. He opened
another bank account into which the impugned payments to Joritans were made. He
transferred the funds into an account held in the name of Hamilton Projects.

[42] The SIU has not disputed these allegations. It has therefore not established
that Joritans has been enriched as a result of the impugned payment NHLS made to
it.

[43] For these reasons, Joritans is not found liable for the repayment to NHLS of the
impugned payment it made to it in the amount of approximately R7 million.
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Just and equitable relief

[44] Having found that the applicants have succeeded in establishing the liability of
Hamilton Ndlovu, the companies he represents and Mok Plus One, Persto and
Kgodumo on the basis of the enrichment claim, it is not necessary to enquire into the
relief they seek in the alternative. Hamilton Ndlovu and the companies he represents
have failed to establish that they have not been enriched. This is the case the
applicants demanded them to answer in respect of the condictio. Under these
circumstances, they are not entitled to just and equitable relief as pleaded in their
answering affidavit.

FORFEITURE OF THE PRESERVED ASSETS

The Preserved assets
[46] The applicants have applied for the consolidation of the applications pursuant
to which the interdicts referenced in paragraph 10 of the judgment were granted and
the review application. None of the respondents have opposed the request. It falls to
be granted.

[47] Assets currently preserved in terms of the Tribunal’s interdicts include:

47.1 immovable properties registered to Zaisan Kaihatsu, a company under the control
of Hamilton Ndlovu who is the real or beneficial owner of the preserved properties;

47.2 Scania Trucks registered to Akannii. The trucks were acquired by Akannii with
funds paid into it by Shinjiro Group (Pty) Ltd, of which Hamilton Ndlovu is the sole
shareholder. Shinjiro Group in turn received R4.77m of the total funds paid to Bugatti
by the NHLS. The sole director of Akannii is Kuhlehonke Manthathi Kubheka, who
was a salaried employee of HamiltonN Holdings. Akannii is thus a further fronting
company. Despite ostensibly being under the control of persons unrelated to Hamilton
Ndlovu, Akannii is in fact related to and controlled by him.

[48] All the respondents in the applications for interdicts have not opposed the
interdicts. In terms of the interdict including the assets preserved by SARS in the scope
of the Tribunal’s interdict, the difference between the amounts derived from the
proceeds of the assets preserved in terms of the SARS order and the amount the
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relevant respondents are found liable to SARS for in respect of tax will remain
preserved at the applicants’ instance.

[49] The applicants have also applied to have all the assets and funds preserved
under the interdicts declared forfeit to the State in terms of Tribunal Rule 26. It provides
as follows:

“At the conclusion of the proceedings and on final determination of the dispute,
depending on the outcome on the unlawful activities of the respondent or the
defendant, as the case may be, the Tribunal may make a final order for
forfeiture to the State, of the property held under a preservation order or the
interdict order where the respondent has been found to have participated in
unlawful activities.”

[50] Rule 26 simply regulates the procedure for declaring forfeit to the State assets
preserved under a Tribunal’s order. The Tribunal derives the power to grant such an
order from section 8(2) of its enabling statute. It provides that:

“A Special Tribunal shall have jurisdiction to adjudicate upon any civil dispute brought
before it by a Special Investigating Unit or any interested party as defined by the
regulations, emanating from the investigation by such Special Investigating Unit,
including the power to-

(a) “ issue suspension orders, interlocutory orders or interdicts on application by such

Unit or party;

(b) make any order which it deems appropriate so as to give effect to any ruling or
decision given or made by it;”

[51] The applicants preserved the relevant funds and assets to recover the amounts
the relevant parties are found liable to the NLHS for in these proceedings. Having
found that Hamilton Ndlovu, the companies he represents and the other fronting
companies are liable to the NHLS on the basis of the condictio ob turpem vel inustam
causam, with the exception to the funds held in the VNI trust account which I deal with
below, the preserved assets and funds fall to be declared forfeit to the NLHS in terms
of section 8(2) read with Rule 26.
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Victor Nkwachu Inc

[52] VNI is an incorporated firm of attorneys. The preservation order incorporates
R10 million held in the NVI trust account. VNI is not opposing the application. It filed
an explanatory note on account of which the applicants no longer persist in the order
they sought against VNI.

[53] The funds VNI received into its trust account, with the exception of an amount
of R43 184.34, was expended on legal fees and disbursements in the defence of
various matters for Hamilton Ndlovu and the companies he represents. VNA wishes
to apply the remaining amount to outstanding legal fees owed to it by Hamilton Ndlovu
and the companies he represents in the amount of R636 328.06. The SIU acquiesce
the request.

PROHIBITION FROM TRADING WITH THE STATE

[54] Abuse of the public procurement system can only be effectively abated when
the infracting parties are restricted from trading with the State. On the basis of the
findings made against Hamilton Ndlovu, the companies he represents, Mok Plus One,
Persto, Kgodumo and Luiborn Dorn Ndlovu in his capacity as a director in Joritans in
these proceedings, the NHLS is urged to invoke section 15 of the Preferential
Procurement Policy Framework Act7 to list these entities, their directors and
shareholders on the database of restricted supplies.

COSTS
[55] The applicants should not be out of pocket as a result of the legal costs they
incurred to preserve assets and to recover the losses to the State as a result of the
impugned transactions and payment. Given the abuse of corporate entities, tender
fronting and fraud that has taken place a punitive costs order is warranted against
Hamilton Ndlovu and the companies he represents. He master minded the fraudulent
procurement scheme and challenged funds deriving from the impugned payments

7
Act 5 of 2000.
 Page 16 of 23

through these companies. They are to pay the legal costs jointly and severally on a
scale as between attorney and client. Such costs should include the costs of three
counsel where employed. The employment of three counsel was justified by the
volume of the evidence in the matter, the complexity of the issues (particularly as
regards the interim interdicts) and the number of respondents opposing the
application.

ORDER

1. In terms of Rule 28 of the Special Tribunal rules read with Rule 11 of the Uniform
Rules of Court, this application is consolidated with the interim interdict
application dated 24 August 2021, as supplemented by the supplementary
application dated 29 September 2021 and second supplementary application
dated 19 November 2021, under case number GP 19/2021.

2. The following decisions and related contracts between the Second Applicant
(“the NHLS”) with the Fourth, Ninth, eleventh to Sixteenth Respondents are
declared unconstitutional, unlawful and invalid and are set aside:

2.1. Purchase order no. (“PO”) 1488970 issued to the Ninth Respondent dated
25 March 2020 for a quantity of “5000 Consumables – Direct Production”
in the amount of R6 274 500.00 (R7 215 675.00 inclusive of value-added
tax).

2.2. PO 1489270 issued to the Fourteenth Respondent dated 26 March 2020

for 100 000 disposable lab coats in the amount of R6 999 000.00.

2.3. PO 1491036 issued to the Fifteenth Respondent dated 31 March 2020 for
15 000 hair safety cap nets in the amount of R2 040 000.00.

2.4. PO 1493290 issued to the Fifteenth Respondent dated 9 April 2020 for
2 500 000 disposable shoe covers in the amount of R13 025 000.00.
 Page 17 of 23

2.5. PO 1492408 issued to the Sixteenth Respondent dated 6 April 2020 for
25 000 lab coats white small press stud (5 in pack) in the amount of
R8 000 000.00.

2.6. PO 1492412 issued to the Sixteenth Respondent dated 6 April 2020 for
25 000 lab coats white medium press stud (5 in pack) in the amount of
R8 575 000.00.

2.7. PO 1492416 issued to the Sixteenth Respondent dated 6 April 2020 for
25 000 lab coats white large press stud (5 in pack) in the amount of
R9 250 000.00.

2.8. PO 1492421 issued to the Sixteenth Respondent dated 6 April 2020 for
25 000 lab coats white extra-large press stud (5 in pack) in the amount of
R9 800 000.00.

2.9. PO 1493387 issued to the Thirteenth Respondent dated 10 April 2020 for
1 250 000 disposable shoe covers in the amount of R7 237 500.00.

2.10. PO 1493667 issued to the Thirteenth Respondent dated 14 April 2020 for
1 250 000 disposable shoe covers in the amount of R7 237 500.00.

2.11. PO 1494196 issued to the Fourth Respondent dated 17 April 2020 for
1 750 000 powder free latex gloves in the amount of R8 732 500.00.

2.12. PO 1494201 issued to the Fourth Respondent dated 17 April 2020 for
1 750 000 powder free latex gloves in the amount of R8 732 500.00.

2.13. PO 1497020 issued to the Fourth Respondent dated 5 May 2020 for
2 000 000 powder free medical examination latex gloves in the amount of
R9 900 000.00.
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2.14. PO 1498248 issued to the Fourth Respondent dated 8 May 2020 for
2 500 000 powder free medical examination latex gloves in the amount of
R12 375 000.00.

2.15. PO 1498255 issued to the Fourth Respondent dated 8 May 2020 for
2 500 000 powder free medical examination latex gloves in the amount of
R12 375 000.00.

2.16. PO 1494297 issued to the Twelfth Respondent 17 April 2020 for

1 750 000 powder free latex gloves in the amount of R8 732 500.00.

2.17. PO 1494303 issued to the Twelfth Respondent dated 17 April 2020 for
1 750 000 powder free latex gloves in the amount of R8 732 500.00.

2.18. PO 1494560 issued to the Eleventh Respondent dated 20 April 2020 for
1 750 000 Nitral gloves in the amount of R8 925 000.00.

2.19. PO 1494561 issued to the Eleventh Respondent dated 20 April 2020 for
1 750 000 Nitral gloves in the amount of R8 925 000.00.

3. The first, fourth, ninth, tenth and thirteenth respondent is declared liable to the
NHLS to repay, and directed to pay, the sum of R172 742 175.00, less
R13 891 253.87 = R158 850 921.13, including interest at the prescribed rate
calculated from the date the NHLS made payment for the orders in paragraph 2,
less (i) the amounts recovered by the NHLS from each of the eleventh, twelfth,
fifteenth and sixteenth respondent in terms of paragraph 4 below, and (ii) the
proceeds from sale in execution of the assets forfeited to the State (after any
execution steps, review or appeal proceedings) in terms of paragraphs 5 and 6
below.

4. The eleventh, twelfth, fifteenth and sixteenth respondent is declared liable to the
NHLS to repay, and directed to pay the respective amounts adjacent to their names
 Page 19 of 23

in the column below, being the amounts by which they have been enriched,
deriving from the payments the NHLS made to them.

Debtor Respondent Debt Amount (Rand)

Eleventh Respondent R157,198

Twelfth Respondent R5,000

Fifteenth Respondent R20,000

Sixteenth Respondent R122,720

5. The following assets are declared forfeited to the State (“the forfeited assets”):

5.1. The properties and funds held by the First, Second and Fourth
Respondents set out in Annexure A to the interim interdict order of the
Special Tribunal of 31 August 2021 attached hereto at “A”, with the
exception of item 5 of Annexure A;

5.2. The vehicles held by the Eighth Respondent set out in Annexure B to the
interim interdict order of the Special Tribunal of 4 October 2021 attached
hereto as “B”; and

5.3. The assets and funds held by the First and Ninth to Thirteenth
Respondents set out in the interim interdict order of the Special Tribunal
of 3 February 2022 attached hereto as “C”.

6. The Applicants must immediately take steps to realise the forfeited assets and pay
the proceeds to the NHLS, to which the following orders apply:
 Page 20 of 23

6.1. The First Applicant is authorised to take all necessary steps to give effect
to the order, including without limitation, signing any documents on behalf
of the First, Second, Fourth, eighth to Thirteenth Respondents, necessary
for, ancillary and/or incidental to transferring the forfeited assets to Mr
Zaheer Cassim, who is hereby appointed as the curator bonis or a bank
account of the NHLS, as the case may be.

6.2. The First, Second, Fourth, and Eighth to Thirteenth Respondents are
ordered to surrender forthwith the forfeited assets (including (i) all items
necessary for, ancillary and/or incidental to, the exclusive possession,
control, access to and disposal of such forfeited assets and (ii) all
information disclosing the exact whereabouts of such forfeited assets, if
applicable) into the custody of curator bonis who is authorised to perform
all the powers and functions prescribed by applicable law and in whom
ownership of the forfeited assets solely vests on behalf of the State.

6.3. The forfeited assets (including all items necessary for, ancillary and/or
incidental to, the exclusive possession, control, access to and disposal of
such properties), shall be released, transferred to and vest in the curator
bonis who is authorised and directed to perform all the powers and
functions prescribed by applicable law, including the following:

6.3.1. as soon as practically possible but not later than 120 court days
after the granting of this order, sell the properties by public auction
or private treaty at market price and disburse the net sale
proceeds to a bank account designated by the NHLS;

6.3.2. in respect of the immoveable properties with tenants, collect all

rentals between the date of this order and the date on which the
properties are transferred to a third party purchaser and disburse
the net rental proceeds to a bank account designated by the
NHLS;
 Page 21 of 23

6.3.3. any function necessary for, ancillary and/or incidental to giving

effect to this order, acting reasonably; and

6.3.4. upon fully implementing this order, deduct the fees and
disbursements associated with performing the function of curator
bonis from the proceeds of realizing the forfeited assets.

7. The NHLS is urged to invoke section 15 of the Preferential Procurement Policy

Framework Act8 to list the fourth, ninth, tenth, eleventh, twelfth, thirteenth, fifteenth
and sixteenth respondents, their directors and shareholders and Luiborn Dorn
Ndlovu in his capacity as a director in the fourteenth respondent on the database
of restricted supplies.

8. R636 328.06 held in the trust account of Victor Nkwachu Inc (VNI) preserved in
terms of the 31 August 2021 order is released back to VNI.

9. The costs of this application, including the costs reserved in respect of the orders
of the Special Tribunal of 31 August 2021, 4 October 2021 and 3 February 2022,
each under case number GP 19/2021, are to be paid by the first, fourth, ninth, tenth
and thirteenth respondents jointly and severally (the one paying the other to be
absolved) on a scale as between attorney and client including the costs of three
counsel.

8
Act 5 of 2000.
 Page 22 of 23

____________________________
JUDGE L.T. MODIBA
PRESIDENT OF THE SPECIAL TRIBUNAL

APPEARANCES
Counsel for the 1st & 2nd applicants: Adv. B Roux SC, assisted by Adv I Currie and
Adv. J Singh

Attorney for the applicant: Mr R Moodley, Cliffe Dekker Hofmeyr INC

Counsel for 1st, 9th, 10th and 13th respondents: Adv. ME Manala

Attorney for 1st, 9th, 10th and 13th respondents: Manala CO. Incorporated, Mr T
Manala.

Counsel for 14th respondent: Adv. MG Makhoebe.

Attorney for 14th respondent: MJ Seemela Attorneys, Ms MJ Seemela

Counsel for 4th, 11th, 12th and 15th respondents: Adv. M Qofa

Attorney for 4th, 11th, 12th and 15th respondents: Ntanga Nkuhlu Icorporated, Mr M
Ntanga

Date of hearing: 8 March 2022

Date of judgment: 7 June 2022

 Page 23 of 23

Mode of delivery: This judgment was handed down electronically by circulation to

the parties’ legal representatives by email, uploading on Caselines and publishing on
Saflii. The date and time of delivery is deemed to be 10am.