Court interdict to stop repair of cancer machines

A DURBAN-BASED company is seeking an interdict from the Pietermaritzburg High Court in a bid to stop the provinical health department from repairing two state-of-the-art cancer radiotherapy machines.

These machines have been at the centre of a damning South African Human Rights Commission (SAHRC) report.

The application, lodged last Friday by KZN Oncology Inc, asked that Health MEC Dr Sibongiseni Dhlomo, Tecmed Africa, or any “other interested party or entity” be stopped from reaching an agreement to repair the machines.

The application goes further to request that if any agreement has been reached to repair the machines, the court should prevent them from being repaired.

It says that any such agreement is in breach of an existing contract between it and the department.

The court papers, signed by Dr Nkanyiso Zwane, KZN Oncology Inc’s sole director and shareholder, says that any agreement reached with the department and Tecmed should be declared unlawful or set aside.

The application follows an announcement last month that an agreement had been reached for Varian, the manufacturer, to repair the two machines.

The SAHRC report revealed that cancer patients wait at least five months before they get to see an oncologist and that it would then take another eight months to receive cancer radiotherapy treatment – a total of 13 months before patients receive treatment.

At the centre of this dire situation was the fact that the machines at Durban’s Addington Hospital were not working and, since they had stopped working the department had seen an exodus of oncologists.

The machines, manufactured by Varian, were installed by Tecmed back in 2010. Tecmed, which is the authorsed agent for Varian, maintained the machines until 2013 when the department decided not to pay the monthly maintenance contract, claiming that there was corruption – an allegation that was never proven or brought to court.

Peak

When operating at their peak, the machines were used to treat as many as 100 patients a day. Both machines stood idle from early 2014 until March 2016 when KZN Oncology Inc managed to repair one of them.

This was only after KwaZulu-Natal health head of department Dr Sifiso Mtshali, had signed a contract with KZN Oncology Inc in December 2015, despite there being no tender or the fact that it was not an authorised service provider for the machines.

The SAHRC has ordered the department to get the machines up and running as soon as possible as well as hire new oncologists.

In his affidavit attached to his application for the interdict, Zwane claims that KZN Oncology Inc successfully repaired both machines and was paid for them, but that it was never paid the monthly R435 000 fee for maintaining the machines.

According to the SAHRC report only one of the machines operated from March 2016 to early November 2016. And since November 2016 neither machine has worked.

Zwane says despite attempting to resolve the issue amicably he had been left with no alternative but to turn to the courts.

In one fax sent by KZN Onclogy Inc’s lawyers to Dhlomo and Mtshali, it is claimed that the contract between it and the department is still in “subsistence” and will only lapse in December 2020. It further claims that KZN Oncology Inc is entitled to R6.85 million for repairs.

In his affidavit, Zwane claims that the agreement that the department reached last month with Varian violated the constitution.

“Insofar as I have been able to ascertain, the purported agreement between the First Respondent ( MEC Dhlomo) and the second respondent (Tecmed) has not been procured as demanded by the constitution read with the Public Finance Management Act 01 of 1999, and the regulations promulgated thereunder.”

The matter is set to be heard in court in Pietermaritzburg today. – ANA