Millions of female condoms, which were not approved by the World Health Organisation (WHO), were destined to be distributed by the Department of Health after the government wrongly approved a tender for the condoms.
In a judgment delivered by the Pretoria High Court on Thursday, it emerged that the female condom – of which at least six million were to be distributed – was manufactured in China from polyurethane and not the required nitrile latex.
“It is unthinkable that a government department granted a tender which would have let loose in South Africa condoms not complying with specifications set by the Department of Health,” said Judge Sulet Potterril. “There were no facts to indicate that had the applicant not stirred the pot, the respondent’s condoms would not have been distributed among the unsuspecting public.”
The details emerged in a review application instituted by Sekunjalo Investments, which had been supplying the government with condoms for women.
This company, however, lost its contract when the government awarded it, following a tender process, to Siqamba Medical, named as a respondent in the application. This company was to deliver millions of condoms for the period ending August 31 next year.
Sekunjalo Investments asked Judge Potterril to set aside the contract. She granted the order.
The minister of finance acknowledged to the court that the “whole process leading to the awarding of the tender (to the respondent) was flawed”.
It was agreed by the government that the contract must be set aside, although it was disputed that it had to be awarded to the applicant.
The condom that the applicant had provided for the past six to seven years had been approved and tested worldwide.
Judge Potterril said the issuing of condoms was vital to curb the spread of HIV/Aids and prevent unwanted pregnancies. This matter was therefore urgent.
Siqamba Medical was awarded the contract to supply 11 million female condoms at R5.74 each, bearing the brand name “Phoenurse”. But the court was told that this product did not have WHO approval and was 20 percent smaller in diameter than the applicant’s condom.
“It is thus suspect whether this product is compatible with the requirements of the local population, whereas the applicant’s product was tested in the Sub-Saharan African environment,” the judge said.
The SABS also declined to approve it.
Also, Siqamba Medical was able to supply only six million condoms over two years and not 11 million as required.
No reasons were given by the government why it accepted Siqamba Medical’s condom, but it was argued on behalf of the finance minister that no reasons were necessary, as it “accepted that the awarding of the tender was fatally flawed”.
The judge said when an organ of state took a decision it contended was flawed, but flippantly refused to give reasons, it was presumed to be for no good reason and not in accordance with a system that was fair or transparent.
The health minister prescribed the requirements for the product in the tender.
The judge said the specifications were formulated to ensure there would be no risk to the public.
The applicant’s product, according to the finance minister, was “tailor-made” for the tender and it was tried and tested. The applicant was the only tender bidder to comply with all the requirements and it had supplied condoms since 2008.
Awarding the contract to the applicant would be fair to the public, Judge Potterril said. - Pretoria News