Revealed: PS, retired director culpable in drugs shortage – ACC

While it has long been publicly known that the Anti-Corruption Commission (ACC) has been seeking court orders against a prominent businessman and senior ministry of health officials allegedly linked to the national drug shortage crisis, this newspaper can now reveal that the commission’s initial application also sought to apprehend a principal secretary and a retired director, alongside other officials and business executives.

According to the court application seen by this publication, the ACC’s investigating officer, Clement Khumalo, requested that the chief justice authorise warrants of apprehension for 15 suspects, including two businessmen, three companies and several individuals who formerly held key positions at the Central Medical Stores (CMS).
The suspects, whose names are withheld as this information is contained in an ex parte application (a legal request made to the court by one party only, without notifying or hearing the other party in advance) are alleged to have been involved in procurement irregularities that the ACC claims contributed to the shortage of essential drugs in public health facilities across the country.

In its initial application, the commission sought sweeping powers to arrest and search the suspects’ homes, offices and vehicles and to seize mobile phones, computers and storage devices believed to contain evidence of irregular transactions.
According to the investigating officer, the PS in particular, faces allegations of fraud and corruption stemming from the advance payment of over E132 million to pharmaceutical supplier Avapharm in 2020.
The PS and three other ministry officials are accused of authorising or signing documents that falsely indicated Avapharm had fully delivered anti-retroviral drugs corresponding to the amount paid in advance.

The ACC claims that, at the time these documents were signed, Avapharm had delivered drugs worth only E123.8 million, leaving an undelivered balance of about E8.7 million. The officials are also alleged to have misrepresented the total advance payment figure to the accountant general, resulting in an overpayment of E54 995. In a related corruption count, the PS and his co-accused allegedly facilitated a further prepayment of E68.6 million to Avapharm despite knowing that the supplier still owed government drug deliveries worth over E70 million from a previous transaction.

The retired director, on the other hand, who would at the time, serve as acting PS also faces allegations of fraud linked to the advance payment of over E132 million made to pharmaceutical supplier Avapharm in December 2019.
The retired director is accused of authorising or facilitating payment for anti-retroviral drugs at an inflated unit price of E98.80, rather than the agreed tender price of E98.75 per unit.
The alleged overcharge of five cents per unit, across more than one million units of the drug Tenofovir/Lamivudine/Dolutegravir, reportedly cost government E54 995.

The ACC claims the retired director approved a memorandum on 30 December 2019 requesting the accountant general to release the funds, despite the discrepancy between the contract price and invoiced amount. The ACC further alleged that Avapharm, through its affiliate Swazipharm, received the funds and utilised them contrary to procurement rules.
When the matter came before Chief Justice Bheki Maphalala, the court found that the commission had failed to present sufficient evidence to establish a prima facie case (a legal term meaning evidence that, on the face of it, appears strong enough to justify action unless disproved).

In a ruling delivered in June, the CJ dismissed the application, finding that while the allegations raised by the ACC were serious, they were not supported by solid evidence.
He highlighted that delivery notes and invoices signed by officials confirmed receipt of the drugs, which he pointed undermined the ACC’s claim that consignments had gone missing or been overstated in value.
The CJ further called attention to the fact that the contractual relationship between government and the pharmaceutical suppliers was a civil matter, not a criminal one, as the agreement itself provided remedies such as penalties or arbitration for disputes over delivery or performance.

“The procuring entity has never terminated the contract between the parties. This is essentially a civil contract, and the Anti-Corruption Commission cannot criminalise a civil dispute without evidence of fraud or corrupt intent,” the CJ stated in his ruling.
He added that, while public frustration over drug shortages was understandable, the courts could not authorise arrests or searches without evidence meeting the legal threshold.

The commission, however, returned to the High Court in August, seeking a second warrant and arguing that it had obtained new evidence. Once again, it requested authority to conduct raids and apprehend the businessman and government officials.
The CJ, however, remained unconvinced and dismissed the second application on September 2, ruling that the High Court had no jurisdiction to reopen a concluded matter.

“The written judgment delivered on 16 June 2025 was final. The fresh application seeks leave to reopen a concluded matter, which this court has no jurisdiction to do,” he said.
He pointed out that if the ACC believed the first decision was flawed, it should have appealed to the Supreme Court rather than attempting to reintroduce the matter through a new application.
The CJ also highlighted that the allegations of a missing E2 million and a supposed E55 000 overcharge remained unsubstantiated, and that the commission had not demonstrated any direct evidence of corrupt payments or bribery.
The ACC has since taken the matter to the Supreme Court, filing a notice of appeal under a certificate of urgency.
In its appeal papers, the commission sets out 12 grounds, in which it argued that the CJ erred in both law and fact when refusing to issue the warrants.

According to the ACC, the issue goes to the heart of public interest, as it concerns the supply of essential medicines to hospitals and clinics nationwide.
In an affidavit supporting the Supreme Court application, the ACC argued that unless the appeal was heard urgently, there was a real risk that evidence could be destroyed or tampered with.
“For every day that passes without hearing the appeal as a matter of urgency, there is a real risk of the persons of interest destroying or tampering with evidence, thus jeopardising the interest of justice,” stated the investigating officer, Clement Khumalo.

He added that if the appeal were delayed until the ordinary court roll in 2026, “the respondents would have succeeded in destroying evidence, rendering the appeal nugatory.”
Khumalo also linked the urgency to the risk of harm to the public, stating that the shortage of drugs ‘continues to endanger the lives of Emaswati,’ which he said the ACC’s investigation sought to address.
The commission further contends that the High Court failed to properly consider evidence suggesting that payments made by Swazipharm to Larreth, a company allegedly linked to one of the officials under investigation, could constitute bribes or unlawful rewards.
According to the ACC, the non-disclosure of these payments created a conflict of interest under Section 27 of the Prevention of Corruption Act of 2006, or at least gave rise to a reasonable suspicion of unlawful conduct.

The ACC argues that it had, on a balance of probabilities, established a prima facie case justifying the warrants and that another court might reach a different conclusion if given the opportunity to review the evidence afresh.
In his judgment, the CJ emphasised that while the courts must assist investigative agencies in fighting corruption, they must also protect citizens from injustice and ensure that judicial powers are exercised fairly.
“The ultimate purpose of this court is to avoid, in practical situations, gross injustice to litigants in exceptional circumstances beyond ordinary adjudicative contemplation,” he said.

He explained that while the judiciary recognises rare instances where normal procedures may fail to protect litigants, such powers must be applied narrowly to preserve the principle of finality in legal proceedings.
“It is not a licence to have multiple bites at the cherry or repeated opportunities to reopen a case merely because a party wishes to present new evidence,” the chief justice stated.
He added that courts could only revisit their own decisions in exceptional circumstances, such as where new and material evidence had been discovered which could not reasonably have been produced earlier, or where fraud had influenced the original decision.