COVID-19-related malfeasance was so widespread that key government institutions such as the Special Investigating Unit (SIU) and the Office of the State Attorney became overwhelmed fighting the wrongdoing.
This emerged in the SIU’s Special Tribunal challenge to set aside a R45.6 million contract to provide food parcels awarded to Kwasa Food Suppliers by the SA Social Security Agency (Sassa) as part of the social relief of distress programme in 2020.
The unit told Special Tribunal president Judge Margaret Victor that it delayed launching its application to review and set aside the contract awarded to Kwasa Food Suppliers due to the overwhelming number of cases of irregularities it had to investigate arising from procurement processes during the Covid-19 pandemic.
According to the SIU, it also faced additional challenges in the appointment process of counsel as there were a voluminous number of investigations as many state institutions were allegedly reported to be involved in irregular procurement during the state of national disaster.
In addition, due to many probes being authorised and conducted during the national lockdown this resulted in many cases requiring investigation.
The tribunal heard that the SIU was finalising a number of applications at the same time which were referred to the state attorney’s office, which also became overwhelmed with work because of the Covid-19 matters, further adding to its already existing backlog.
In July 2021, the Kwasa Food Suppliers investigation was referred to the senior staff in the SIU’s legal division to process the matter in order to launch civil proceedings.
It was to be referred to the state attorney’s office but there was a delay in obtaining the necessary approval for the processing of the instruction for the state attorney to brief legal counsel to pursue the civil litigation.
The matter remained dormant in the state attorney’s office until the SIU decided to second one of its members to the State Attorney to deal solely with the unit’s matters.
However, this temporary arrangement brought another challenge to light, as legal counsel withdrew or refused to do further work due to their fees that had been outstanding for a long time.
In June 2022, the SIU then decided to appoint its own panel of private attorneys to provide services directly to it, which was only finalised in March the following year.
When the SIU’s attorney of record was about to appoint legal counsel a technical point was raised by the Auditor-General South Africa (AGSA) relating to the establishment of a panel of attorneys in private practice, which led to another delay.
The SIU was forced to halt all further work under the panel of attorneys because of the potential of irregularity flagged by the AGSA.
The dispute was later escalated to the National Treasury in January last year and two months later the matter was enrolled in the Special Tribunal.
The SIU maintained that it completed and finalised filing its application within a reasonable time despite the many challenges it faced.
Judge Victor was also sympathetic, finding that the delay was not wilful but exacerbated by many factors.
”The lack of resources and inefficiencies are self-evident and not obfuscated by the applicant,” she explained.
Kwasa Food Suppliers argued that Sassa requested and was granted a deviation from normal procurement processes by the National Treasury.
The company raised the SIU’s non-joinder of the National Treasury in the proceedings and the SIU not challenging Treasury’s decision to approve the deviation.
According to Kwasa Food Suppliers, the SIU had not sought to have the decision of the National Treasury set aside to grant the deviation, which gave reasons such as the nature of the service, urgency and to provide social relief to the poor, and Judge Victor agreed with the company’s contention.
”The applicant (SIU) has failed in the reviewing and setting aside of the tender sought … The failure to impugn the decision by the National Treasury to grant the deviation is fatal to the relief sought by the applicant,” the judge declared, dismissing the SIU’s application with costs on Wednesday.
loyiso.sidimba@inl.co.za