Court dismisses recusal application
MBABANE – The Supreme Court judges have dismissed an application for recusal of all members of the bench from the review proceedings in the matter involving the executors of the estate of Charles Mafika Ndzimandze and Total Swaziland (Pty) Ltd.
Mafika operated KaFolishi Service Station, which Total Swaziland obtained an order to evict last year. The executors are; Edmund Mazibuko, Nellie Ndzimandze, Daniel Ntshalintshali, Velabandla Dlamini and Carlos Maphandzeni.
They wanted Supreme Court Judge Sabelo Matsebula, Acting Judges Mbutfo Mamba, Sabelo Masuku, Mndeni Vilakati and Andreas Lukhele to recuse themselves from the proceedings.
The bench was empanelled to hear the executors’ review application of the decision of the Supreme Court dismissing their appeal and directing the filling station to vacate the premises of Total Swaziland, within a month.
One of the applicants’ (executors) three grounds of the recusal related to all the judges, the other related to acting judges and the last one to Acting Supreme Court Judge Mbutfo Mamba.
In its judgment dismissing the recusal application, the Supreme Court said in this jurisdiction there was no rule which prohibited a judge who had definitely pronounced on an issue from hearing a subsequent case concerning the issue.
“The authorities cited, established that a judge is disqualified from sitting in a case where another judge, on the same bench is a litigant or where the judge has an interest in the subject of the litigation or where the judge has commercial relationship with a party,” reads part of the judgment. They noted that a judge was barred from sitting in a case where a litigant and the judge shared the same attorney and the lawyer represented the judge in an ongoing case. It was the court’s finding that in the present instance, acting justice of the Supreme Court was not a litigant before them.
Litigation
“Secondly none of us share the same attorney with any of the parties in an ongoing litigation or other adjudicatory process. Thirdly, there is no commercial relationship between any of the parties and the judges empanelled to hear the review,” said the court.
According to the court, there was no rule in this country, or in any other Commonwealth jurisdiction where judges had to recuse themselves from hearing a case because one of the parties was represented by an acting judge’s firm of attorneys or by an advocate from the same group of chambers as the acting judge. The Supreme Court judges said an application for a recusal of a judge was in fact sensitive.
“In order for applicants to rebut the presumption of impartiality on the grounds that judge deliberate issues, the applicant ought to have placed facts before court which demonstrates that the judges discussed the pending review with acting Judge Manzini. No such facts were adduced in evidence,” said the court.
The judge further highlighted that no member of the court assigned to hear the pending review had previously made adverse credibility finding against a witness whose evidence was crucial.
“None of us has made findings of fact on an issue which is a live controversy. For the reasons stated above the applicants have not rebutted the presumption of impartiality which applies to judicial officers. The application for recusal is dismissed,” said the Supreme Court.
Meanwhile, when the application for recusal was argued, senior lawyer Mangaliso Magagula for the applicant argued that attorneys who had pending matters in the court, should not be appointed as acting judges. Magagula pointed out that he was speaking in reference to the present case and he was not making a general statement.
According to Magagula, a lot was at stake for the litigants in the matter before court. One of the executors of Charles’s estate, Nellie, who is a Director of KaFolishi Service Station, said her company was more than willing to vacate the premises of Total Swaziland if it was paid the agreed goodwill in the sum of E2 073 215.
She alleged that the amount was agreed by the parties and the point of departure was when the respondent (Total Swaziland) demanded that the money be paid not by it, but by the incoming dealer.
“The applicant did not know the incoming dealer and refused to accept the terms,” said Nellie. The present litigation, according to Nellie, was needless and was allegedly perpetuated by Total Swaziland’s desire allegedly not to pay the applicant for its goodwill. “Applicant is prepared to move out once it is paid for its proprietary interests. The respondent on the other hand seems to be bent on not paying the applicant for its goodwill. Goodwill is paid on a going concern.
Paid
“The applicant is entitled to keep possession of its property and to part with it on being paid for it. This in a nutshell is the thrust of the property right clause contained in Section 19 of the Constitution. In short, applicant is defending its proprietary rights,” argued Nellie.
In a letter dated September 9, 2021, addressed to Cliffe Dekker Hofmeyr in Johannesburg, Magagula Attorneys informed the former that the applicants had ‘considered your client’s improved offer totalling E2 073 215 and accepts it subject to the condition that the payment should be made by your client, not a third party who has no relationship with our client’.
“Note that there would be no litigation had Total not refused to pay the goodwill when it terminated the agreement. Furthermore, our client has been compromised by not proceeding to review the judgment in terms of Section 148 of the Constitution,” reads part of the letter.
In Total Swaziland’s answering papers, Sales and Marketing Manager Sindisile Horton said the applicants were allegedly unable to prove the goodwill and had purportedly remained in unlawful occupation of the premises, notwithstanding the order of court directing them to vacate the premises within a month.
Vacate
Horton told the court that a subsequent order directing the applicants to vacate the premises within 10 days was issued by Acting Judge Judith Currie on November 4, 2021. She alleged that the applicants used their occupation of the premises as a bargaining tool for a higher payment of goodwill.
During the argument of the recusal application, Magagula told the court that if his clients did not take the matter up on review, they would not have a business. He said the executors had reasonable apprehension that they would not have a fair hearing because their colleague, Acting Judge Manzini, interacted with them. Magagula submitted that there were instances where a judge would recuse himself if he had dealt with a similar matter. A judge, according to Magagula, must conduct a trial open-mindedly. “Don’t put yourself in a situation where someone would say you were conflicted,” said Magagula. The respondents were represented by Advocate Patrick Flynn.