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MBABANE – Big Tree Filling Station (Pty) Ltd says a former chief justice (CJ) was impeached for some of the things they were complaining about regarding the current CJ.

During the hearing of the recusal application in respect of Acting Supreme Court Judge Zonke Magagula and Judge Sifiso Nsibande yesterday, Big Tree’s attorney, Mangaliso Magagula of Magagula and Hlophe Attorneys, told the court that CJ Bheki Maphalala allegedly interfered in the matter between the filling station and Galp Eswatini (Pty) Ltd.

The attorney said the issues they had raised about the alleged conduct of Maphalala eroded the confidence of the courts. He said even a layman would not do some of the things they were concerned about. Magagula did not mention the former CJ by name. The previous CJ was the late Michael Ramodibedi and he was impeached after being charged with serious misconduct. He was removed as the CJ of the country in 2015.

Grounds

The grounds upon which Big Tree wants the two judges to recuse themselves from its matter with Galp Eswatini is that they were appointed and empanelled by the CJ to hear and determine the matter. According to Big Tree, the CJ is conflicted in the matter by reason of the fact that there is a complaint against him lodged by the former.

He is accused of administration of justice in the matter and interfering with High Court Judge Ticheme Dlamini in the course of performing judicial function. Judge Dlamini heard the matter in the High Court and recused himself. However, Maphalala allegedly directed the judge to hear the matter despite that he had removed himself from it. Magagula said it was not clear how the CJ had known what had happened in the matter to direct as he did.

Magagula told the court that the existence of the complaint against Maphalala in relation to his alleged interference in the matter created a source of conflict for him, which barred him from exercising power in respect of the matter.

He submitted that another source of conflict of interest arose from the fact that the CJ was part of the panel that determined the matter on appeal and the judgment on appeal was the subject of the review on the merits in terms of Section 148 of the Constitution.

“Having been part of the panel that decided the matter on appeal, the chief justice cannot appoint and empanel judges to hear a review of his judgment. The chief justice is conflicted in this matter and should not exercise any of his powers to appoint and empanel judges to hear and determine this matter. The existence of the conflict of interest creates a situation whereby he cannot exercise power in this matter because he is conflicted,” said Magagula.

The attorney pointed out that the question was whether a fair-minded and informed observer, having regard to all the facts, would reasonably apprehend bias. The bias as used in this sense means the absence of independence and impartiality, said Magagula. The