Arbitrator clears Phungwayo
MBABANE - The Elections Advisor and former Head of Secretariat at the Elections and Boundaries Commission (EBC), Richard Phungwayo, has been absolved of any wrongdoing in the matter involving Slomoes Corporation.
Phungwayo was the second respondent in the matter in which the Slomoes Corporation was the first respondent. Subsequently, there was an arbitration arising from the Rent to Buy Agreement entered into by the EBC and Slomoes Corporation on April 15, 2018.
In terms of the agreement, the EBC was supposed to rent the Election Management System from Slomoes, which was then to be acquired by the elections management body at the end of the rental period or upon full payment of the contract price.
Agreement
The contract was supposed to commence on the day of the conclusion of the agreement and continue to run for the subsequent five years to April 14, 2023.
The dispute between the two parties arose after allegations that Slomoes Corporation ended up being paid more than what the tender documents had stipulated. While the initial tender contract of E18 million had been awarded to Slomoes Corporation (PTY) Ltd, the elections management body allegedly ended up paying about E8 million more, which was considered to be irregular.
The initial claim by EBC at the High Court prior to the arbitration process was for the elections management system worth E18 million, which the EBC alleged Slomoes had not delivered. Meanwhile, the other one was for E8 million in respect of maintenance and support of the election management system, which the EBC also claimed to have not received.
As a result, the EBC claimed that it had suffered damages to the tune of E26 000 000, being the contract price.The conditions of the agreement were that Slomoes Corporation would supply EBC with equipment that was new, unused and of the latest design as well as in operative condition that incorporated all recent improvements in design and material, unless provided for otherwise in the contract.
Management
In the court papers, it was alleged that the company failed to deliver a new election management system, but instead supplied an old elections management solution, which had been previously used. Furthermore, the company allegedly failed to deliver a full set of the elections management solution, in that about 17 laptops were allegedly missing. It was subsequently disclosed by Slomoes Corporation during the arbitration hearing that it withheld the laptop computers on account of outstanding payments for by-elections.
At the time that the Rent to Buy Agreement was signed, Richard Phungwayo was Head of Secretariat at the EBC. In the initial proceedings at the High Court, it was alleged that Phungwayo had enabled Slomoes Corporation to carry out the alleged fraud as he represented EBC and it was his signature that was appended on the agreement document.
“The defendants unjustly benefitted through an unlawful and/or invalid Service Level Agreement, signed by Slomoes (Lucky Bandzi Dlamini), his attorney and Mr Richard Phungwayo which is in violation of the General Conditions of the Rent-toBuy Agreement, unjustly enriching Slomoes Corporation to a sum of E8 million,” read the papers.
Matter
The matter was ultimately referred to an independent arbitrator to settle the dispute. This was triggered by Clause 27 of the General Conditions of The Rent to Buy Agreement, hence all the legal proceedings instituted by the EBC at the High Court collapsed. The High Court’s sole responsibility at this point was to endorse the award of the arbitrator as an order of the High Court of Eswatini, marking the closure of all legal action.
Former Minister of Justice and Constitutional Affairs Ndumiso Mamba was then appointed as the arbitrator.
When delivering his judgement in the executive part of the award, Mamba stated that: “In the totality of all the submissions made by the parties and having considered the evidence placed before me, all claims filed by the claimant (EBC) are dismissed, it having been proven that the first respondent complied with the conditions of the Rent to Buy Agreement.”
Slomoes Corporation was also directed to deliver the remaining 17 laptops within 21 days of the award.