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may continue to interfere with the judges in this matter, more so, those who were appointed and empanelled by him.”
Detailing the alleged extent of the interference by the CJ, Calu submitted that in the High Court, Judge Ticheme Dlamini issued an order directing Galp to supply Big Tree with fuel pending the finalisation of the the review application in terms of Section 148 of the Constitution (the main review on the merits). He submitted that Galp refused to comply with the court order, to date.
He said Galp’s refusal to comply with the court order prompted Big Tree to institute contempt proceedings against the former. The contempt proceedings, according to Calu, were brought before Judge Dlamini, who had issued the order the applicant sought to enforce. The purpose of the contempt application was to enforce compliance with the court order, which the respondent had not complied with, said Calu.
Allocation
“Before the contempt of court application could be heard on October 8, 2021, the respondent brought an application for Justice T. Dlamini to recuse himself from the matter. Justice T. Dlamini recused himself from the matter and referred the matter to the registrar for allocation to another judge.
“The chief justice issued a directive that the respondent must bring a formal application for Justice T. Dlamini’s recusal and directed Justice T. Dlamini to reconsider and determine the recusal application. The chief justice issued these directives even though Justice T. Dlamini had already recused himself from the matter and referred it to the registrar,” Calu submitted.
The Big Tree director informed the court that the CJ’s directives were highly irregular and unlawful. He said the directives were issued in violation of Section 141 (2) of the Constitution.
“The Chief Justice had no right to interfere in the matter. He was not involved in it. His interference prevented the course of justice. He directed Justice T. Dlamini to hear the formal recusal application, which at the time was not pending and had not been instituted.
“As to how he knew that a formal application would be instituted is everyone’s guess. The judge had already recused himself and the file had been taken to the registrar for allocation to another judge. Justice T. Dlamini was made to change his order and call the parties where he revealed the directive of the chief justice. At the time of the chief justice’s directive to Justice T. Dlamini, the latter was already functus officio.”
Calu informed the court that the CJ’s involvement in the matter was clear. The matter is pending in court.
MBABANE – Big Tree Filling Station alleged that its matter with Galp was enrolled simultaneously with the matter between SwaziMed and Medscheme.
The parties are represented by the same attorneys. Galp and Medscheme are represented by South African advocate Christiaan Bester, who is instructed by Robison Bertram Attorneys.
The Director of Big Tree Filling Station, Nurane Calu, said this happened on a number of occasions. He alleged that it was done for the convenience of the advocate. He told the court that in the 2021 second session roll of the Supreme Court, the SwaziMed and Medscheme review matter was allocated to be heard on November 15, 2021 and the review between Big Tree and Galp Eswatini was allocated to be heard on November 16, 2021.
Calu said in the 2022 first session roll, the matter of SwaziMed and Medscheme was allocated to be heard on February 7, 2022 and the one between Big Tree and Galp was allocated to be heard on February 8, 2022.
He also said in the 2023 roll, Big Tree and Galp’s review was to be heard on May 9, 2023, while SwaziMed and Medscheme’s was allocated May 8, 2023. “The reason for enrolling the matters on consecutive dates is clear. The respondent’s (Galp) attorneys also represent Medscheme and the same counsel is used for both matters. He is counsel from South Africa. It is convenient for him to attend both matters on consecutive dates. The respondent’s attorneys are also the chief justice’s attorneys,” alleged Calu.
Complaint
He submitted that Big Tree had lodged a complaint against the Chief Justice (CJ), Bheki Maphalala, emanating from his alleged interference in the matter. The alleged interference, according to Calu, is subject of a judicial conduct complaint in terms of Section 158 of the Consitution.
The applicant (Big Tree), submitted Calu, issued summons claiming a sum of approximately E15 000 000 against Galp, which was based on permanent physical disability to himself occasioned by emotional shock arising from the malicious proceedings. He said an exception to the summons was raised but to date there had not been no judgment despite it being reserved about five years ago.
He said another example of the CJ’s alleged intereference related to an appeal filed by Galp against the grant of an interlocutory order directing the latter to supply filling station with fuel, ‘which orders the respondent refused to comply with’.
“The respondent, as a pretext for its non-compliance with the court order, used the so-called appeal against the interlocutory order, which is unappealable, except with leave of court. This appeal has not been set down for hearing since 2021. The chief justice has simply not enrolled the appeal and no reasons were given. He has only enrolled the matter where the applicant seeks relief and even then, he has exercised the power to appoint and empanel in a manner that shows bias in favour of the respondent and against the applicant,” submitted Calu.
Power
He continued to say: “The chief justice has enormous power regarding how matters are heard in the courts as demonstrated by chief justice directing a judge to reconsider a matter which the judge had already heard and determined. The chief justice has the power to empanel a bench and to appoint the member of the panel that would author the judgment. When the matter came to this honourable court, the chief justice exerted his empanelling powers in favour of the respondent and at great cost and prejudice to the applicant,” said Calu.
He submitted that on appeal, the CJ was a member of the panel that heard the matter and decided against Big Tree. He said in the review proceedings, the CJ appointed judges who had either decided a similar matter against the filling station in previous litigation or were conflicted or had recently expressed opinions favourable to the respondent’s case.
“The chief justice, despite being conflicted in the matter, empanelled Justice Mamba, Justice (Sabelo) Masuku, Justice (Majahenkhaba) Dlamini, Justice (Andreas) Lukhele and Justice (Phesheya) Dlamini to hear the review proceedings against the applicant and respondent.”
Calu narrated how each one of the mentioned judges were conflicted to hear the matter and Big Tree applied for their recusal. The matter is pending in court.