Mbabane: The Chief Justice, Bheki Maphalala has been fingered in serious allegations akin to obstructing the course of justice in the long outdrawn matter of the Big Tree Filling Station in Matsapha. The dispute in the matter is between fuel suppliers, Galp Eswatini, and the owners of the business, Nur and Sam (Pty) Ltd, trading as Big Tree Filling Station. It has resulted in Galp Eswatini refusing to supply fuel and fuel products to the business.
According to the Director of Nur & Sam (Pty) Ltd, Nurane Calu, Galp Eswatini stopped supplying fuel to Big Tree Filling Station in September 2020 despite the fact that there was a Franchise Agreement between the two parties. In response, Nur & Sam (Pty) Ltd instituted urgent proceedings at the High Court directing Galp Eswatini to supply fuel. Judge Qinisile Mabuza presided over the case and granted an order directing Galp to supply fuel. The order was appealed against by Galp Eswatini and accordingly set for hearing before the Supreme Court.
The Supreme Court in which the Chief Justice was part of the appeal panel reversed the High Court Judgement that had ordered Galp to restore the supply of fuel. Dissatisfied with the decision of the High Court, Nur & Sam(Pty) Ltd applied to have the decision reviewed and set aside. The application for review is pending before the Supreme Court and is scheduled for hearing on November 16, 2021.
Subsequent to this, Nur & Sam (Pty) Ltd applied to the High Court for an order directing Galp to continue supplying fuel to the Big Tree Filling Station in Matsapha while the review at the Supreme Court remains. On September 30, 2021, Judge Ticheme Dlamini granted an interim order directing Galp to release the supply of fuel. However, Galp refused to comply with the interim order, compelling Nur & Sam (Pty) Ltd to institute contempt proceedings in a bid to enforce compliance. The matter was to be set down on the urgent roll for October 12, 2021.
Prior to the hearing of the contempt application, Galp’s attorneys instituted a recusal application against Judge Ticheme Dlamini. After much deliberation, Judge Ticheme Dlamini recused himself from the matter and ordered that the matter be referred to the Registrar so that it can be finalized as early as possible.
A day before the hearing, the attorney for Nur & Sam (Pty) Ltd, Mangaliso Magagula was informed by the Deputy Registrar that she had been instructed by the Chief Justice to take the file back to Judge Ticheme Dlamini who had recused himself so that he hears a formal written application for recusal and not to recuse himself without a formal application.
The Director of Nur & Sam (Pty) Ltd, Nurane Calu says “In short, the Chief Justice issued a directive contradicting Judge Ticheme Dlamini by directing him to re-hear the recusal application which he had already dealt with and issued an order. Judge Dlamini was now functus officio and could not deal with the application as per the Chief Justice’s directive.”
Later on that day, the Deputy Registrar advised that the Chief Justice had instructed that the file be given to Judge Justice Mavuso. This was after acknowledging Judge Dlamini’s functus officio status in the matter.
Nur & Sam (Pty) Ltd Director Nurane Calu laments that “as a result of the Chief Justice’s direct intervention by issuing a directive contradicting the order issued by Judge Ticheme Dlamini, the matter which came under a certificate of urgency could not proceed. His interference was clearly intended to prevent the matter from proceeding so as to allow him to give it to a Judge of his choice. The Chief Justice interfered in the application for contempt of court against Galp and its General Manager, Fannie Mthethwa who refused to comply with an order issued by the High Court. We were impeded by the Chief Justice interference in a matter that is central to the Rule of Law. Galp was aided and abetted by the Chief Justice to ignore a Court Order.”
In his Judicial Conduct Complaint, it is the view of Nurane Calu that “Chief Justice Bheki Maphalala obstructed the course of justice by issuing a directive to Judge Ticheme Dlamini his subordinate and a Judge of the High Court, who was handling the matter and had issued an order directing that the matter be referred to the Registrar. Judge Dlamini had and recused himself from the matter on the grounds that he did not want to cause unnecessary delays in the hearing of the matter which was an urgent matter. The Chief Justice’s directive contradicted Judge Dlamini’s order. He was forced to heed the Chief Justice’s directive and take over the matter even though he had recused himself. As a result of this act by the Chief Justice, the matter could not be heard on the urgent roll as it had been set for hearing. His actions clearly impeded the hearing of the matter such that it could not be heard on the date that it was set.”
Nurane Calu further contends that “the obstruction of Justice was further compounded by the fact that on October 13, 2021, Chief Justice Bheki Maphalala allocated the matter to Judge Justice Mavuso who was not on the urgent roll. The allocation was confirmed by the Deputy Registrar who informed our attorneys that she received a directive from the Chief Justice to allocate the matter to Judge Mavuso. It is clear that he wanted the matter to be heard by a Judge chosen by him. He obstructed Justice to achieve this purpose.”
The application for review is pending before the Supreme Court and is scheduled for hearing on November 16, 2021.
Meanwhile, members of the Law Society have resolved to address the litany of complaints against the Chief Justice. The lawyers have resolved that “the allegations against the Chief Justice are very serious and there is a need to address them speedily so that confidence in our justice system can be restored.”
Discussion about this post