BY SIFISO NHLABATSI
MBABANE – Proving suspected procurement offences can be difficult when those involved conceal their communications, disguise financial transactions or present deliberate violations of tender procedures as honest mistakes, Judge Cyril Maphanga has warned.
Speaking during a stakeholder workshop on the enforcement of Sections 62 and 63 of the Public Procurement Act, 2011, held at Hilton Garden Inn on Friday, Maphanga highlighted the evidential challenges facing institutions investigating and prosecuting procurement-related crimes.
He said collusion, bid-rigging, fraud and conflicts of interest could be difficult to establish when investigators lack direct evidence linking the people suspected of working together.
In cases involving alleged price-fixing, for example, participants might communicate privately without openly recording an agreement. The use of burner phones, encrypted communications and the disposal of devices can further complicate efforts to establish whether bidders colluded.
The judge also highlighted the difficulty of proving fraudulent intent where a public official departs from prescribed tender procedures but subsequently argues that the decision was made in good faith or was necessary to secure emergency supplies.
He said investigators must distinguish between genuine mistakes and conduct that may amount to a criminal offence.
Maphanga identified similarities in competing bids as one potential avenue for investigation. Identical errors, unusual formatting or similar content across submissions could provide clues that bidders had coordinated their responses rather than prepared them independently.
Tender specifications could also offer evidence of possible collusion or favouritism. Where specifications prepared by a procuring entity closely mirror documents held by a particular supplier, investigators may need to establish how that information was obtained and whether there was improper coordination.
The judge further pointed to concealed conflicts of interest and suspected illicit financial flows as areas requiring careful examination. Financial records and transaction trails may help investigators establish links between public officials, suppliers and benefits arising from procurement decisions.
However, he stressed the importance of collecting, preserving and handling evidence in a manner that protects its integrity and supports its admissibility in court.
The workshop brought together representatives of ESPPRA, the Royal Eswatini Police Service, Anti-Corruption Commission, Office of the Director of Public Prosecutions, Attorney General’s Office and other oversight institutions.
The discussions sought to strengthen cooperation between these bodies and establish clear procedures for referring suspected offences, sharing information and following up cases.
The initiative forms part of ESPPRA’s efforts to ensure that substantiated procurement violations are progressed through appropriate legal channels.
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