THE Supreme Court has dismissed an appeal by the National Pharmaceutical Company (NatPharm) which was seeking to nullify a High Court ruling that its contract with the controversial Drax Consult Salg (Drax) is valid.
NATHAN GUMA
A panel comprising Justices Joseph Musakwa, Chinembiri Bhunu and George Chiweshe heard the matter and threw the appeal out by reading only the operative part of their judgement.
They said full reasons will be handed down in due course.
Drax was represented by Advocate Edley Mubaiwa. The contract between Drax and NatPharm was for the supply of medicines and medical sundries.
Drax approached the High Court contesting a 2020 arbitral award nullifying the tender it had been granted for the supply of the medicines and surgical sundries.
The contract was brusquely cancelled after a national public outcry following corruption allegations surrounding it.
Drax local representative Delish Nguwaya and former health minister Obadiah Moyo were later arrested over corruption charges relating to the contract.
They have however been cleared of the charges while three NatPharm top executives have since been removed from remand over the same charges.
Drax attorney Everson Samkange said the media sensationalised the issue yet everything was above board.
“Quite clearly the contract had an uproar in terms of publicity some people, several sections of the media had their various interpretations to the contract, but what this judgement then means…because it is from the highest court, means that all those negative allegations that were being levelled against the contractors were without basis and without foundation, and were just being made to smear their good standing. In my view once the highest court in the land has pronounced that the contract is valid . . . it means that all those statements that were to the contrary cannot be taken seriously. It also means that the people who were dismissed by the media had actually done absolutely a large role,” said Samkange.
In coming up with the judgement, Justice Chinamora noted that the Procurement Regulations of Zimbabwe Authority Zimbabwe (Praz) gave authority to NatPharm to act in accordance with a resolution that had been made in procuring the required medicines and surgical sundries.
Chinamhora said it is not disputed that on 11 December 2019, the parties entered into an agreement for the supply of medicines and medical sundries by the former to the latter under Tender NAT DP19/2019.
“Pursuant to this agreement, the applicant delivered medical supplies worth US$2 733 480 to the respondent. However, the respondent refused to take delivery of medicines with a value of US$210 000, which the applicant avers are sitting at Robert Mugabe International Airport.
“The respondent argued, inter alia, that the contract was concluded in contravention of section 15 (1) and (2) of the Public Procurement and Disposal of Public Assets Act (Chapter 22:23), in this instance referred to as the Public Procurement Act,” said the judge.
The leaked letters had established that Drax International was first awarded a contract worth US$20 million to supply medical equipment and medicines and another US$40 million for the supply of Covid-19 medicine and personal protective equipment by NatPharm.
President Emmerson Mnangagwa’s wife Auxillia and son Collins were also implicated as the alleged beneficiaries of the deal.
Drax had submitted that the cancellation was unlawful.
In its arguments, Drax drew the court’s attention to a letter dated 6 November 2019 written by Praz chief executive officer Nyasha Chizu to the managing director of NatPharm.
Chinamhora ruled that the net effect of so doing is that Praz gave authority to NatPharm to act in accordance with that resolution in procuring the required medicines and surgical sundries.
“There is nothing ambiguous about the letter of 6 November 2019. That letter requires no elaborate interpretational aids to decipher its meaning.
“Given the straightforwardness of its language, it is inevitable to remark that the contention that authority was given by SPOC [Special Procurement Oversight Committee] and not Praz is an untenable mirage not supportable by facts.
“Consequently, I find no conceivable reason for ascribing to SPOC the authority to procure medical supplies from the applicant. Quite clearly, the said letter satisfies the requirements of section 15 (1) and (2) of the Procurement Act,” said the judge.
He added: “It seems to boggle the minds that the arbitrators found that the contract between the applicant and the respondent was illegal and unenforceable for want of compliance with section 15 of the Procurement Act.”
The High Court also accused Praz of approaching the court in bad faith.
