KaFolishi vs Total: Data bundles matter stalls case
MBABANE – “This litigation has been funded by the other party.”
SeniorAttorney Mangaliso Magagula, of Magagula and HlopheAttorneys, made this statement in the Supreme Court yesterday after learning that Total Eswatini attorneys had purchased data bundles to enable the virtual participation of their South Africa-based Advocate Patrick Flynn in the proceedings.
This was during the review matter between KaFolishi Service Station (Pty) Ltd and the executors of the estate of Charles Ndzimandze, against whom Total Swaziland (Pty) Ltd obtained an eviction order from its Nkoseluhlaza Street premises.
The executors are Edmund Mazibuko, Nellie Ndzimandze, Daniel Ntshalintshali, Velabandla Dlamini and Carlos Maphandzeni. The matter was supposed to be heard on Wednesday.
However, since the Eswatini Posts and Telecommunications Corporation (EPTC) server is reportedly down, the attorney representing Total Swaziland, Lewis Ndlovu, and one of the High Court IT officers, were said to have decided to switch to a MTN Eswatini connection. The attorney, the court was told, purchased one gigabyte of data and the IT officer’s cellphone was used for the connection. Magagula was not involved in the process and he took issue, that the proceedings were funded by Total Swaziland. The senior attorney told the court that he had never seen litigation that was funded by a party to the litigation.
“Clearly, this has been funded by the other party. It is the degeneration of the courts. The court has to be the one making a point that its operations are normal,” said Magagula.
Judge Mbutfo Mamba said the bench was not involved and there was no court order to that effect. “We, as judges were not involved. If there was a problem, the registrar should have been made aware,” said the judge. Magagula said he did not know how it happened. He reiterated that it had never been done that a litigant would fund litigation. “It is never done and it should never happen.”
Judge Mamba said he had expressed his view, that if a party were not to attend court for a certain reason, that party should pay the cost if they wanted to appear virtually.
Magagula said there was a way in which the court should operate and that did not include a party to the proceedings funding the litigation. “It should be funded by the taxpayer.” He pointed out that the Total Swaziland representatives attempted to downplay the issue and they wondered why he had a problem with it.
Judge Mamba enquired from Magagula how the problem should be fixed. “What is your suggestion?” Magagula said he did not want to be involved in court administration. He said he was in court to represent his client. “The rest is not my baby.”
Circumstances
Acting Judge Sabelo Masuku asked what order Magagula was applying for. Magagula told the court that he was informing the court about the issue and that ‘we can’t proceed under these circumstances’. “The litigation is funded by Total.”
Advocate Flynn said the objection was petty and said it was a ploy to delay the proceedings. “When the people set up the system, there was an unstable EPTC connection. We noted this on two other matters. My instructing attorney suggested that we connect to MTN.
“To say a party is funding the litigation is nefarious. In every appearance, there is an attempt to delay the matter. My client is exasperated by the manner the case is progressing,” said the advocate.
Ndlovu explained that what happened was that they tried to connect but the connection was unstable. The IT said in another courtroom the attorneys had connected to MTN Eswatini and purchased data bundles. “He suggested we do the same. The connection was done through the IT officer’s phone. We don’t understand the objection,” said Ndlovu.
Judge Sabelo Matsebula, who was presiding, enquired if it was possible to revert to the normal system. The IT officer explained that EPTC had reported that its server was down. He said yesterday there were other virtual hearings to be held and the litigants proposed to produce data.
Judge Matsebula asked if the office of the registrar could not buy the data. The IT officer said he had one gigabyte of data and the Total Swaziland representative suggested that more data be added. The court adjourned the proceedings briefly and the IT officer was refunded E65 for his data by the High Court Accounts Department. The matter was postponed pending finalisation of the review of the judgment dismissing the recusal application.
The matter was proceeding after the court had dismissed an application for recusal of all members of the bench. These were Judge Matsebula, as well as acting judges Masuku, Mamba, Andreas Lukhele and Mndeni Vilakati.
The applicants, KaFolishi Service Station (Pty) Ltd and the executors of the estate of Charles Ndzimandze, against whom Total Swaziland (Pty) Ltd, have filed a review of the decision to dismiss their application for recusal. 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 last one toActing 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 a 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.
Litigant
The court went on to state that furthermore, 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.
“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 ground that judge deliberate issues, the applicant ought to have placed facts before the court which demonstrated 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.
Controversy
“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 the 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.