The judgment to pay back the money was delivered by Judge Lebogang Modiba during a Special Tribunal hearing on Tuesday, 7 June 2022. The hearing emanates from an application by the National Health Laboratory Service (NHLS) to review and set aside procurement transactions for the supply of personal protective equipment (PPE) between the NHLS and eight companies owned by Ndlovu and his associates.

At the time of the conclusion of the contracts the NHLS adopted emergency procurement procedures in response to the outbreak of Covid-19.

In that judgment, Modiba said: “Thabiso Hamilton, Bugatti Security Services and Projects (Pty) Ltd, HamiltonN Holdings (Pty) Ltd, Hamilton Projects CC and Feliham (Pty) Ltd are declared liable to the NHLS to repay and directed to pay the sum of R172 742 175.0o less R13 891 253, 87=R158 850 921.13 including interest.”

In papers filed this week Ndlovu, along with 15 other applicants, the eight companies owned by him and his associates, have appealed against the decision. However, for his appeal to be successful, Ndlovu needs to produce a compelling and substantial argument to prove that the Special Tribunal has erred in its judgments.

The contracts are worth a total of R172-million from the NHLS. The hearing also declared the contracts unlawful, invalid and set aside the appeal. It was the SIU’s contention that the procurement transactions for the supply of PPE between the NHLS and Bugatti Security, Hamilton Holdings (Pty) Ltd, Mok Plus One (Pty) Ltd, Abompetha (Pty) Ltd, Feliham (Pty) Ltd, Joritans Logistics (Pty) Ltd, Persto (Pty) Ltd and Kgodumo Mokone Trading Enterprise (Pty), and payment made to them in terms of the impugned transactions, were irregular and unlawful and therefore unconstitutional.

In May 2020, Daily Maverick reported that Ndlovu boasted about buying five luxury vehicles worth an estimated R11-million, after which SARS provisionally froze his personal and company bank accounts and seized three of his Porsches. Among the known assets listed were a Porsche 911 Carrera Cabrio, a Porsche Cayenne S Coupe and a Porsche Panamera GTS Sport, all of which have ownership dates in June 2020.

In their grounds for appeal, Ndlovu and the 15 others contend that the tribunal misdirected its inquiry on the facts, and thereby incorrectly assessed and/or determined the facts.

Another bone of contention raised by Hamilton is that the Special Tribunal also misdirected its inquiry on the application of the law, incorrectly applied the law and the court exercised discretion upon the wrong facts.

“The Special Tribunal is established by Proclamation of the President under the authority conferred in Section 2(1)(b) of the Special Investigating Units and Special Tribunals Act 74 of 1996 (SIU Act).

“It is accordingly clear that the Special Tribunal is not a Court established in terms of Act of Parliament as envisaged in Section 166(c) or in terms of Section 166 (e) of the Constitution. Thus, the 16 applicants contend that the Special Tribunal exceeded its powers when it engaged in the judicial review of administrative actions,” his appeal document reads.

Thabiso Hamilton Ndlovu. (Photo: Twitter)

Hence Ndlovu, the eight companies owned by him and his associates further contend that the “environment of emergency in the procurement of the PPEs that prevailed at the time could not be properly probed by way of the proverbial armchair hindsight”.

“Notwithstanding, the Special Tribunal did not correctly engage the inquiry in terms of section 172 of the Constitution, in the scheme of judicial review proceedings, as the Special Tribunal did not correctly assess the relevant facts and ultimately exercised discretion upon the wrong facts and principles.

“The Special Tribunal appears to have accepted the principle: ‘no profit and no loss’ hence the Special Tribunal directed that an amount of R13 891 253.87 ought to be deducted from the amounts found to be owing following the review and setting aside of the impugned transactions,” the papers outline.

Stating his arguments on the error of judgment by accepting the SIU and NHLS, Ndlovu and his associates argued;

1. In their primary stance, the SIU and NHLS contended that they (Hamilton and his associates) did not deliver the contracted quantities of PPE;
2. The SIU and NHLS said they could not verify the exact quantities of PPES delivered, but their assessment of the flow of funds indicated that an amount of R13 891 253.87 was ‘possibly’ spend in the procurement of the PPEs delivered to NHLS;
3. The introduction of the said amount arised from an evaluation of the bank statements of Ndlovu and his associates (in the financials flows report). An assessment of the transactions is undertaken on the narrow basis of the references attached to particular transactions; and
4. The manner of identifying the possible costs associated with the impugned contracts omits to account for objective cost factors which are invariably common transactions of a similar nature such as storage of PPEs, delivery of PPEs and payments made to SARS in respect of contract.

The basis of Ndlovu’s arguments is on the Special Tribunal’s misdirection of, inter alia, the facts, the law, the exercise of discretion there and hence his contention there are reasonable prospects of success in the appeal.

SIU spokesperson advocate Selby Makgotho confirmed that the SIU had received the papers.

“The SIU along with Ndlovu will file heads of arguments by Friday, 15 July to determine the way forward in this appeal process,” Makgotho said. DM