Times Of Swaziland: BIG TREE THREATENS CJ WITH CRIMINAL CHARGES

BIG TREE THREATENS CJ WITH CRIMINAL CHARGES
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Kwanele Dlamini on 24/05/2023 17:12:00


MBABANE – The proprietors of Big Tree Filling Station (Pty) Ltd say they
reserve the right to pursue criminal charges against the chief justice (CJ) for
allegedly obstructing the course of justice.
The Director of Big Tree Filling Station, Nurane Calu, said the right extended
to all those implicated in the alleged interference with the course of justice
in their matter with Galp Eswatini (Pty) Ltd. This is contained in Big Tree’s
application for the recusal of High Court Judge Zonke Magagula and Judge
President of the Industrial Court of Appeal, Judge Sifiso Nsibande from their
review in the Supreme Court. The two judges are appearing in the matter between
the filling station and Galp Eswatini as acting judges of the Supreme Court.
The judges refused to recuse themselves when Big Tree’s attorney, Mangaliso
Magagula of Magagula and Hlophe Attorneys applied in chambers that they recuse
themselves from the matter. Calu told the court that the judges stated that they
saw no reason to remove themselves from the matter. Big Tree proceeded to file a
formal application, in which the CJ was accused of interfering in the matter.
Interference
According to Calu, Big Tree had lodged a complaint against the CJ emanating from
his alleged interference in this matter. He alleged that the CJ’s purported
interference in this matter was also the subject of a judicial conduct complaint
in terms of Section 158 of the Constitution. As a result, Calu informed the
court that Big Tree reserved its right to pursue criminal charges for
obstructing the course of justice against the CJ Maphalala and anyone who was
implicated in said interference. “The chief justice is a conflicted party in
this matter. The chief justice has overtly demonstrated an interest in this
matter and its outcome,” Calu alleged. He stated that the CJ allegedly
interfered in the matter, and in so doing prevented it from being allocated to
another judge to hear it on an urgent basis, as directed by Judge Ticheme
Dlamini. “It is quite clear that the chief justice interfered with the matter
to ensure that the applicant did not obtain the contempt order. He was doing
this to protect the respondent. The chief justice was not supposed to be
involved in the matter and had nothing to do with it.
“As it is, the respondent is in violation of a High Court order directing it
to supply the applicant with fuel. As a result of the respondent’s wilful
defiance of the court order, the applicant’s business remains closed as it is
not being supplied with fuel by the respondent. The chief justice used his
powers to prevent the enforcement of a court order,” alleged Calu. He pointed
out that the CJ was the chief custodian of law in the country and the head of
the Judiciary, who oversaw the administration of justice. “Contempt of court
on the other hand strikes at the very heart of the administration of justice
which the chief justice has a constitutional mandate to oversee. He acts
contrary to the Constitution and his oath of office when he goes against his
constitutional mandate to oversee the administration of justice and does the
complete opposite by interfering with the administration of justice.
“The applicant does not enjoy the equal protection of the law. The chief
justice used his power to deny the applicant its legal right to enforce a
judgement in its favour through the legal process of contempt of court. In so
doing, the applicant was denied the right to equal protection of the law.”
Calu submitted that the appointment of the acting judges was tainted by the
CJ’s alleged conflict and interest in the matter.  He argued that the CJ’s
alleged conflict in this matter precluded him from appointing and empanelling
judges to hear the matter, where he was conflicted and had an interest.
Appointing and empanelling judges to a matter in which the CJ is conflicted,
according to Calu, denied a litigant in the position of Big Tree a fair hearing,
as enshrined in Section 21 of the Constitution. “The right to a fair hearing
is non-derogable and entails a hearing before an independent and impartial
court. Impartial in the sense that the court is and is seen to be impartial.
Independent
“An independent and impartial court as required by the Constitution can only
be achieved where the person appointing and empanelling the court is free from
conflict. Where he is conflicted, he taints the process and nothing arising from
the tainted process will be lawful. The Chief Justice exercised a power
conferred by the Constitution. A condition for the exercise of power is that he
must not be conflicted. Where he is conflicted, the exercise of power would be
invalid and would taint the process,” narrated Calu. The Big Tree director
added that: “Their Lordships should have recused themselves on the grounds
that a reasonable litigant in the position of the applicant with knowledge of
how the Chief Justice interfered with the matter and has also interfered with a
judge of the High Court in the course of the Judge’s performance of his
judicial functions, would apprehend that the Chief Justice 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.