Times Of Swaziland: CHIEF JUSTICE ACCUSED OF INTERFERENCE IN MATTERS AGAIN

CHIEF JUSTICE ACCUSED OF INTERFERENCE IN MATTERS AGAIN
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Kwanele Dlamini on 28/10/2024 08:30:00


MBABANE – Chief Justice (CJ) Bheki Maphalala has been accused of interference
yet again.
This time, the executor in the estate of the late Sloveig Crabtree alleged that
Maphalala included ‘his own judge’ to a bench that was empanelled by Judge
Phesheya Dlamini. Judge Dlamini, as the most senior judge, empanelled the bench
to hear the appeal filed by the executor, Alan McGregor, after the latter
complained that some of the parties in this matter, businessman Walter Bennett
and Robert Crabtree, reportedly met the CJ during the course of this matter. 
Alan and his wife, Sonia, who was the daughter of the late Sloveig, were removed
as co-executors as per a judgment by Judge Titus Mlangeni on June 14, 2023.
Robert, whose children are beneficiaries in Sloveig’s estate, who is their
grandmother, is the one who filed for the removal of the executor, purportedly
on their behalf. The children are Kristopher, Emily and Katie. Robert is not a
beneficiary of the estate. Bennett is a one per cent beneficiary in the estate,
one of whose properties is Tonkwane Farm. The farm was sold by the executor to
Dups Holdings for E28 million. Dups Holdings sold it to the Public Service
Pensions Fund (PSPF) for E74 million. Bennett wants the sale to be reversed and
he took the matter to court.
After Alan complained that Bennett, Robert and/or others met the CJ in his
chambers while the matter is pending, Maphalala recused himself from empanelling
the bench to hear his (Alan) appeal. As the most senior judge, Judge Dlamini had
the responsibility to then appoint the bench.  The bench comprised of Judge
Stanley Maphalala, Judge Nkululeko Hlophe and Judge Sabelo Matsebula. However,
when the matter was heard, Judge Magriet Van Der Walt was part of the bench and
Judge Hlophe was not part of the panel.  According to Alan, the CJ allegedly
interfered by including Judge Van Der Walt and directing her to also write the
judgment. In the judgment by Judge Van Der Walt, Alan’s appeal was struck off
due to an incomplete record.
Awarded
Judge Van Der Walt also ordered that costs be on the ordinary scale, and were
awarded in favour of the respondents, including certified costs of counsel in
respect of Robert, Kristopher, Emily and Katie.  The judge also ordered that the
appeal may be reinstated by the appellants (Alan and others) upon good cause
shown.Alan, who is represented by Mangaliso Magagula of Magagula and Hlophe
Attorneys, has since filed a review, and to set aside the application for the
decision of Judge Van Der Walt. Alan, Sonia, Inez, Katherine, Alexandra Lyndall
and others are the other applicants.  Alan told the court that prior to the
enrolment of the appeal and in November 2023, he instructed the applicants’
attorneys, Magagula and Hlophe Attorneys, to request the CJ to recuse himself
from any further participation in the matter.
The CJ was requested to recuse himself also from the enrolment, allocation of
dates for hearing, empanelment of the bench to hear the appeal and being part of
the panel to hear the matter.
He said the reason for asking for the CJ’s recusal was that he was conflicted
and, therefore, disqualified from performing any of his functions in the appeal
because he allegedly met and interacted with two of the litigants, Bennett and
Robert, involved in the matter, regarding it, in the absence of the other
litigants.  Judge Dlamini, in a minute to the registrar of the Supreme Court,
which was sent to the parties, advised in respect of the appeal, that the panel
was to be constituted by Judge Sabelo Matsebula, Judge Nkulueko Hlophe and Judge
Judith Currie.
The minute also stated that Justice Matsebula was to write the judgment.
On February 20, 2024, the applicants’ attorneys addressed a letter to the
registrar of the Supreme Court, advising that one justice in the panel to hear
the appeal had dealt with the matter before and was disqualified. According to
Alan, March 26, 2024, Judge Dlamini informed the registrar that he had revised
the empanelment of the bench in respect of the appeal and the panel was to be
constituted by Judge Stanley, Judge Matsebula and Judge Hlophe. The minute also
stated that Justice Matsebula was to write the judgment. At the start of the
hearing of the appeal on June 3, 2023, his attorneys raised the issue of the
constitution of the bench, particularly that the bench was different from the
one empanelled by Judge Dlamini.
He pointed out that one member of the panel empanelled by Judge Dlamini -
Justice Hlophe - was no longer part of the panel.  He said Justice Van Der Walt,
instead, was then part of the panel.  “No reasons were given for the sudden
change in the panel. The change of the panel was not communicated to the
parties’ legal representatives as was previously done by Justice Dlamini.
“The chief justice, despite having recused himself from performing the
functions of office, including the enrolment and empanelling of the bench to
hear the appeal, appointed Her Ladyship Justice Van Der Walt to be part of the
panel to hear the appeal. Justice Van Der Walt was not only part of the panel;
she also wrote the judgment in the appeal.
Decision
“This altered a decision taken by Justice Dlamini, lawfully exercising the
functions of the office of the chief justice, to empanel the bench to hear the
appeal and to appoint a member of the panel to write the judgment. Justice
Dlamini appointed Justice Matsebula to write the judgment,” Alan argued. The
veracity of these allegations is still to be tested in court. The respondents
are yet to file their answering papers. Alan said it has been stated that a
decision to empanel judges is a decision given in a judicial capacity and it is
subject to fairness requirements. He stated that upon recusing himself, the CJ
was disqualified from empanelling and appointing judges in the appeal.
He argued that the CJ not only empanelled Justice Van Der Walt, but also
overrode the decision of Justice Dlamini in respect of empanelling the bench to
hear the appeal and the appointment of a member of the panel to write the
judgment. “The appointment of Justice Van Der Walt was an act of interference
by the chief justice with the exercise of judicial functions by Justice Dlamini.
It is an act outlawed by Section 141(2) of the Constitution,” Alan said.
According to Alan, the CJ met and interacted with Bennett and Robert or someone
associated with Robert, regarding the matter.
“This disqualified the chief justice from performing his functions such as the
enrolment of the matter and the empanelment of the bench to hear the appeal or
being part of a panel to hear the appeal. “The well-established rule of law is
that a judge is strictly prohibited from meeting and interacting with any party
involved in litigation before the courts while the litigation is pending, in the
absence of other parties, in particular where the judge is still to discharge
judicial functions in the litigation. If he meets the parties, he must meet them
all at the same time,” he submitted.
The CJ in this case, according to Alan, met and interacted with two of the
litigants in the absence of the applicants who are parties to the litigation. He
said the CJ met parties who had pending business in the courts and he discussed
the pending matter with them in the absence of the applicants. Allegations of
interference against the CJ were previously made by directors of Big Tree
Filling Station. The matter is pending in court. They accused the CJ of
interfering in their matter against Galp Eswatini (Pty) Ltd.