Wednesday, November 25, 2020

Judge Rahim Khan’s competence on trial in ARV case

Acting High Court Judge Justice Rahim Abdool Khan’s competence was on trial this week.

This follows his decision to delay a ruling in which Portfolio Pharmaceuticals Botswana Propriety Limited sought to interdict the Ministry of Health from procuring Anti-Retroviral Drugs.

Delivering a judgement this week, Court of Appeal’s Justice Lakvinder Waliafound that: “In a matter where there were uncontroverted averments of imminent threat to the health and even life of patients in need of drugs, it was irresponsible and callous of the judge to have treated the matter in what I can call an uncaring manner.”

According to Walia:“These are strong words but they echo what has been said by this court before.” Walia cited China Jiangsu judgement in which Justice Isaac Lesetedi had lamented the delay in the court making its decision saying that “the ruling was delivered after the Respondents’ attorneys had on several occasions approached the Registrar and finally written to the Judge expressing the need for the ruling to be delivered expeditiously.”

In that case too, Walia noted, the same judge presided. “This Court is not alone in deploring the delay in judgment delivery, particularly in cases brought on urgency.”

He said:“The Law Society has been relentless in its efforts to improve matters and in the draft amended Rules of the High Court which I had the benefit of perusing, prominence is given to the need for expeditious delivery of judgements, with time limits being proposed both for delivery of judgments in the normal course and (of for shorter duration) for judgements in urgent proceedings.”

He said it is hoped that the comments “of this Court and the efforts of those sitting in positions of supervision over Judges will, sooner, rather than later, have the desired effect and the expeditious flow of judgements will be restored.”

Walia also stated that the application before Khan was for interim interdict and the parties (Ministry of Health and Portfolio Pharmaceuticals Botswana Propriety Limited) had filed lengthy affidavits on the matters necessary for the court’s consideration. He said it could not be said that the court exercised its discretion judiciously in making the decision in disregard of the requisite.

“The decision therefore stands to be set aside. Before the final orders in the appeal, I’m constrained to deprecate, in strong terms, the delay by the court a quo (Khan’s Court) in rendering its ruling,” said Walia. He found that the application was brought on urgency and the court had its first hearing almost immediately,

“It is therefore inexcusable that the ruling was delayed by a full six months from the date of hearing. Such delays are unconscionable and serve to erode public confidence in the judiciary,” observed Walia.

He allowed the appeal by the Ministry of Health with costs and set aside the decision of the High Court which had temporarily interdicted the Ministry from procuring ARVs pending the determination of the main review application.

In its appeal, the Ministry had revealed that a recent decision by the High Court to interdict government from procuring antiretroviral (ARV) has thrown the country into a “major public health crisis with the very possibility of the loss of life as well as patients being resistant to HIV drug treatment.” Portfolio Pharmaceuticals Botswana Propriety Limited had taken the government to court and successfully interdicted the Central Medical Stores from issuing a tender to supply the life saving drugs.

The company sought a review of the award of the tender to some of the competitors that had been granted the tender. 

It also wanted the decision by the Public Procurement Disposal and Asset Disposal Board (PPADB) to award the multi million tender be set aside.

The application for review by Africure Pharmaceuticals Botswana and Portfolio Pharmaceuticals Botswana arise from the evaluation of a tender worth millions of Pula for supplies of ARVs to CMS.

It emerges from Court papers that PPADB unbundled and split the government tender identified as “Framework Contract the Procurement of Anti-Retroviral Drugs” and awarded it to five companies. The aggrieved company bone of contention is that the tender should not have been split among them.

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The Telegraph November 25

Digital edition of The Telegraph, November 25, 2020.