3 judges deployed to Commercial Court
MBABANE – Three High Court judges have been deployed to the newly-established Commercial Court.
Judge Cyril Maphanga, Judge Khontaphi Manzini and Judge Doris Tshabalala will now be based at the Royal Science and Technology Park (RSTP) at Nokwane, where the court is housed.
The trio, according to an impeccable source, has already started dealing specifically with matters of a business nature.
“They will soon be relocating to their new workstation together with their support staff,” said the source.
The Commercial Court deals with all types of business disputes, including breach of contract, tort, property, trust and probate, IT disputes, judicial review, corporate mergers, global restructuring, insurance portfolio transfers, international swaps and derivatives or other investment disputes, and intellectual property.
Contracts
The Investor Road map Unit in 2015 said, although the country had improved in the World Bank Ease of Doing Business 2016, there were areas where Eswatini was not performing well, for instance, enforcing contracts.
Matters enrolled at the Commercial Court are less likely to be postponed on the date of the actual hearing, since there are various steps put in place to ensure that matters are ready for trial, including case management and holding of frequent pre-trial conferences.
Chief Justice (CJ) Bheki Maphalala recently issued a practice directive, in which he detailed how this court would operate.
According to the CJ, the Commercial Court would be a division of the High Court of Eswatini and vested with jurisdiction to hear and determine commercial disputes. He further pointed out that the court ( Commercial Court) would utilise and be guided by the High Court Rules in so far as the Rules were not inconsistent with the practice directive.
“The mandate of the Commercial Court is to promote the expeditious and efficient resolution of commercial dispute,” said the CJ Maphalala.
He further pointed out that the registrar of the High Court would allocate commercial cases to the judges of the Commercial Court after due consultation with him (CJ). Maphalala said judges of the Commercial Court would be appointed by the King on the advice of the Judicial Service Commission in accordance with Section 153 of the Constitution.
The CJ went on to state that the qualification for the appointment of the judges of the Commercial Court would be similar to those of the judges of the High Court and in accordance with the Constitution.
“The procedure applicable to the Commercial Court shall be the same as the procedure applicable to the High Court; and the proceedings of the court shall be conducted in public subject to the provisions of the Constitution,” said Maphalala, who is also the Chairman of the Judicial Service Commission (JSC).
In the practice directive, the CJ also highlighted that appeals from the Commercial Court lied with the Supreme Court of Eswatini, and the Rules of Court applicable to appeals in the Supreme Court would be applied.
Summons
“Subsequent to the issuance of summons at the High Court, any party to the suit may apply to the registrar of the High Court to have the matter designated as a commercial dispute for the determination of the Commercial Court. Notice should be given to the other party to the proceedings,” reads part of the practice directive.
Maphalala further highlighted that an application for the matter to be designated as a commercial dispute, should be made by delivering a letter to the registrar. The letter, according to the CJ, must set out the legal basis for the designation of the matter as a commercial dispute.
“If a party has brought an application to the High Court which contains commercial issues, the party may apply to the registrar for the matter to be removed from the High Court roll and enrolled before the Commercial Court,” said the CJ.
He said the registrar of the High Court would consider the application and make a ruling within two days after hearing oral submissions from both parties.
Maphalala further mentioned that the decision of the registrar would be reviewable by a single judge of the High Court upon receipt of an application on motion proceedings.
“The registrar in consultation with the chief justice shall allocate a matter which has been designated as a commercial dispute to a judge of the Commercial Court for determination,” reads part of the practice directive. CJ Maphalala also highlighted that the presiding judge would convene a meeting of experts, where experts’reports would be filed. The experts, according to Maphalala, would produce a joint minute setting out the issues of agreement and disagreement as between them and the legal basis for the disagreement.
It was further brought to the attention of those who intend to utilise the Commercial Court that, a litigant was entitled to lodge an urgent application and set out in detail the legal basis for the urgency. He said the application should be accompanied by a letter addressed to the registrar to have the application designated as a commercial dispute.