SUPREME COURT – The Supreme Court has dismissed an urgent application by Hlesna Investments after ruling that the company had improperly attempted to invoke the court’s supervisory powers under Section 148(1) of the Constitution instead of pursuing an appeal against a High Court judgment.
In a judgment delivered by Judge Senzangakhona Phesheya Dlamini, with Judges Sabelo Matsebula and Mbutfo Mamba concurring, the apex court held that the matter did not meet the jurisdictional requirements necessary for the exercise of the court’s supervisory powers.
The court consequently dismissed the application with costs, awarding costs to Galp Eswatini on the ordinary scale.
The judgment centred on the interpretation and application of Section 148(1) of the Constitution, which grants the Supreme Court supervisory jurisdiction over lower courts and tribunals in limited circumstances.
The dispute arose from a franchise agreement between Hlesna Investments, operator of a fuel station situated near the Mahamba border post, and Galp Eswatini, the supplier of fuel and petroleum products.
According to the judgment, the parties had entered into a supply and sale agreement commencing on February 15, 2022, and terminating on September 30, 2025. Under the agreement, Hlesna operated as a franchisee of Galp petroleum products.
The relationship between the parties later deteriorated, with correspondence exchanged from May 2024 into 2025 highlighting operational and contractual disputes.
Galp ultimately informed Hlesna in July 2025 that the agreement would not be renewed after expiry, citing failure to meet performance standards under the franchise agreement.
Hlesna disputed the decision, arguing that Galp had no right to unilaterally terminate or refuse renewal of the agreement and insisted that the dispute ought to be resolved through dispute resolution procedures contained in Clause 33 of the franchise agreement and Section 141(1) of the Petroleum Act.
The matter escalated to the High Court after Galp allegedly disabled fuel pumps, changed locks and cut fuel supplies at the Mahamba filling station on October 1, 2025.
Hlesna subsequently approached the High Court on an urgent basis seeking a mandament van spolie, restoration of fuel supply, and an interdict restraining Galp from interfering with the operation of the filling station pending resolution of the dispute.
In its founding papers before the High Court, Hlesna argued that Galp had unlawfully dispossessed it of the filling station business without due legal process.
Galp opposed the application, contending that the franchise agreement had expired by effluxion of time after Hlesna failed to exercise its right to seek renewal within the stipulated period.
The High Court partly ruled in favour of Hlesna by ordering Galp to restore physical possession of the premises through removal of locks and reactivation of fuel pumps and systems. However, the court declined to order Galp to restore fuel supply and dismissed the interdict sought by Hlesna.
Dissatisfied with the refusal to compel restoration of fuel supply, Hlesna approached the Supreme Court under Section 148(1) of the Constitution seeking to have portions of the High Court judgment set aside and replaced.
Among the relief sought was an order compelling Galp to restore fuel and petroleum supplies and an interdict restraining the company from interfering with operations at the filling station pending finalisation of dispute resolution proceedings.
However, the Supreme Court found that the company had adopted the wrong legal route.
Judge Phesheya Dlamini held that the application was in reality an appeal disguised as an application brought under Section 148(1).
“This Court is persuaded by the submission by the Respondent that this matter is not one falling within the jurisdiction of this Court as per Section 148(1) but it may well be within the appellate jurisdiction of this Court,” the judge stated.
The court emphasised that supervisory jurisdiction under Section 148(1) was distinct from appellate jurisdiction under Section 146 of the Constitution and could not be used as an alternative avenue to challenge judgments merely because a litigant was dissatisfied with the outcome.
The judgment further stated that courts must remain vigilant to ensure Section 148(1) is not abused to circumvent established appeal procedures.
“Section 148(1) only creates superintendence jurisdiction of the court over lower courts and tribunals in appropriate and defined circumstances,” the court held.
Judge Phesheya Dlamini further observed that while the correctness of the High Court’s refusal to compel restoration of fuel supply may be debatable, that issue fell squarely within the appellate jurisdiction of the Supreme Court and not its supervisory powers.
“The Court’s conclusion to refuse the supply of fuel and petroleum, having granted the mandament van spolie, may well not be a correct one. However, the correctness or otherwise of the impugned orders is, in my view, a matter falling within the appellate jurisdiction as opposed to superintendence jurisdiction,” the judgment read.
The court noted that supervisory intervention under Section 148(1) would only be justified where proceedings of a lower court were tainted by patent errors of law, excess of jurisdiction, failure to comply with rules of natural justice, or where proceedings amounted to a nullity.
According to the judges, none of those circumstances existed in the present matter.
The Supreme Court found that the High Court proceedings did not exhibit any patent errors, misdirections, excess of jurisdiction, or failure to observe natural justice principles warranting intervention under Section 148(1).
The court also rejected Hlesna’s reliance on urgency as justification for approaching the Supreme Court through supervisory proceedings.
Judge Phesheya Dlamini said urgency only related to the enrolment of a matter and could not convert an appeal into a supervisory application.
“To allow a party, as the Applicant sought to do, to approach this Court by way of application as opposed to an appeal purely on alleged urgency will prejudice other litigants whose matters are as important and of significant economic value,” the court stated.
The judges further remarked that jurisprudence surrounding Section 148(1) had now become settled in Eswatini and litigants should no longer confuse supervisory jurisdiction with appeal proceedings.
As a result, the application was dismissed with costs.
Hlesna Investments was represented by lawyer Mangaliso Magagula of Magagula and Hlophe Attorneys, while Galp Eswatini was represented by Kenneth Motsa of Robinson Bertram Attorneys
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