A court bid by businessperson Hamilton Ndlovu to stop the Special Investigating Unit (SIU) from recouping R172m he allegedly received from the government in a tender to supply personal protective equipment (PPE) has been dismissed by the Special Tribunal.
The case forms part of the PPE fraud and corruption cases amounting to R15bn, said SIU spokesperson Kaizer Kganyago.
“We are done with the report on PPEs and have handed over to the president. This case forms part of those investigations,” he told Business Day.
Ndlovu sought to stop the SIU and the National Health Laboratory Service (NHLS) from taking any further legal action against him, citing lack of funds. Ndlovu argued that due to the Sars preservation order against him, he and his associates lack the funds to oppose the SIU and the NHLS application.
The SIU and the NHLS want the PPE contracts awarded to him to be set aside and declared invalid and unlawful.
In its application to the tribunal, the SIU says R152m flowed to Ndlovu for his personal use. Only R103m is preserved under the Sars preservation order and the interim order. About R50m remains unaccounted for by Ndlovu. This includes R15m withdrawn in cash through tellers and ATMs that he has denied.
Should the SIU and the NHLS application succeed, Ndlovu and his associates will be placed on the list of tender defaulters and would be barred from conducting business with the state.
“The stay application is brought with the ulterior purpose of delaying the review application. The SIU will be prejudiced by a delay in the finalisation of the review application, as it will allow Ndlovu and his companies to further dissipate funds that have not been preserved,” the SIU said in court papers.
On Tuesday, judge Lebohang Modiba shot down Ndlovu’s application and ordered that he adhere to the dates to file opposing papers, paving the way for the application to be heard in March 2022.
Modiba said Ndlovu referred to third party sources that are covering his expenses but failed to disclose the sources. He added that Ndlovu has failed to disclose to the court the funds that are being used to pay for the legal recourse sought.
“In the absence of full disclosure of the applicants’ [Ndlovu and companies’] financial means, including assistance from independent third-party sources and the R50m unaccounted for, I am not satisfied that the applicants have prospects of success in establishing that they will suffer undue hardship as envisaged in section 163(9) of the [Tax Administration Act] — even on the broad definition of this concept that they contend for — if the curator does not make additional money available to them to oppose the review application,” Modiba said.
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