Public Protector finds DoD did it all wrong with Heberon acquisition

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Acting in the national interest during a government declared state of disaster to prevent COVID-19 spreading does not imply ignoring legal precepts, the Public Protector believes with regard to the Department of Defence acquisition of Heberon from Cuba.

This is made clear in a 129 page report pertaining to maladministration and irregularities in the procurement of unauthorised medicines from Cuba by the Department of Defence (DoD) through the Logistics Division and the military health service of the SA National Defence Force (SANDF). The report was released on Friday, 30 September by acting Public Protector, Advocate Kholeka Gcaleka.

The investigation was initiated following a complaint lodged by Democratic Alliance shadow defence and military veterans minister Kobus Marais in February 2021.

Part of the report’s conclusion reads: “Based on information and evidence gathered, it can be concluded the DoD did not comply with any South African procurement legal prescripts when it procured the drug, particularly the NT (National Treasury) regulations/instruction notes and the PFMA (Public Finance Management Act), including those specifically established for procurement of goods and serves on an emergency basis. It was not expected of the DoD to use the COVID-19 pandemic narrative to disregard procurement procedures for a fair, equitable, transparent, competitive and cost-effective procurement process”.

Acquisition of the Heberon, unregistered in South Africa and according to Marais thus “smuggled” into the country, was, the Public Protector report has it, done without the DoD having funds to pay for the prophylactic.

“It can also be noted from the SecDef’s (Secretary for Defence, Gladys Kudjoe’s) letter dated 18 August 2021 to the NT, the DoD did not have funds for the procurement they committed themselves to R225 million (sic).

“It is against all procurement processes for the DoD to conclude a procurement process when there was no budget or funds available. The SecDef stated it was an emergency procurement which the SANDF had to embark on. Further, this letter was written to NT approximately 17 months after the procurement occurred. The DoD did not confirm availability of funds before procurement of the drug.”

A further telling conclusion in the Public Protector report notes: “The evidence further reflects the drug was not registered for use to treat COVID-19 in South Africa when it was delivered. It was also observed that the DoD was unable to use this drug”.

“It paid approximately R35 million for a drug that they could not use in South Africa and still owed Cuba approximately R182 million for the drug.”

In reaction, Marais said there appeared to be “an absolute disregard” for laws and regulations by what he sees as “a rogue unit in the group of Military Command Council (MCC) officers” with “an exaggerated affinity for Cuba and anything Cuban”.

He will hand the Public Protector report to both the National Prosecuting Authority (NPA) and the Officer of Auditor General Tsakani Maluleke to support criminal charges he brought “against some people” named in it.