SWAZIMED, MEDSCHEME CASE HALTED OVER RETRACTION

MBABANE – The Supreme Court yesterday did not hear the appeal between SwaziMed and Medscheme due to the non-retraction of the statement in which the former ‘updated its members about the ongoing court case’.

The order to retract or withdraw the statement that was published in the Times of Eswatini on November 3, 2020 was issued by Judge Majahenkhaba Dlamini, sitting with Judge Stanley Maphalala, Acting Judges Sabelo Matsebula, Justice Mavuso and Judy Currie.

However, SwaziMed filed a review of the decision of the court and its representative, senior lawyer Mangaliso Magagula of Magagula and Hlophe Attorneys, told the court that they were not aware of what they were expected to retract.

When the matter was called, Judge Dlamini said on November 4, 2020, SwaziMed was ordered to do certain things. Apart from retracting the statement, SwaziMed was also ordered to apologise for publishing same and to furnish the registrar of the Supreme Court with the corrective statement for the approval of the court. 

Order

Yesterday, Judge Dlamini asked if SwaziMed had carried out the order of the court. Through its lawyer, Magagula, SwaziMed informed the court that it had filed a review application for the November 4, 2020 order. 

“So you did not do what the court ordered; yes or no?” The judge mentioned that SwaziMed did not comply with the order of the court because it had filed a review application.

The court then asked for a way forward and Magagula said there was a pending issue which SwaziMed wanted to raise the last time the matter was in court. The issue which the fund wanted to raise, according to Magagula, was that of the recusal of some of the judges who sit in the matter. 

This, according to Magagula, was not a mere muttering as Medscheme had insinuated. He said SwaziMed would still bring the recusal application in respect of some of the judges. Judge Dlamini cut him short and said ‘we are on the issue of contempt’.

The judge said the review application would not be heard by them. Magagula said they were served with the application to alert them that there was a review application in respect of the orders the court had issued. He stated that SwaziMed sought legal redress against that order.

Contempt

Medscheme representative, senior lawyer Kenneth Motsa of Robinson Bertram, said SwaziMed was ordered to retract the statement and issue an apology within a specific period, but that had not been done. 

He noted that SwaziMed had filed a review application and said the contempt had not been purged. He accused the fund of coming to court with dirty hands.

Motsa told the court that there was no stay order in the review application stopping the court from hearing the appeal. He said the court should allocate a date for the appeal and mentioned that the matter dated as far back as 2016. 

He also mentioned that the court should regulate the procedure and not allow the parties to dictate to the court. He said the matter, which he said was becoming a public circus, should not be prolonged but finalised.

Magagula again told the court that he had not seen any finding of contempt. “We were asked to retract. We don’t know what we are retracting,” said Magagula.

He said the way forward would be that the recusal application, should be heard first before anything else happened.  Magagula conceded that nothing could stop the court from hearing the review application, but stated that there were things that were mentioned in the review about the panel to hear the matter. 

He pointed out that his client had a right to a fair hearing. He denied that SwaziMed was delaying the proceedings but stressed that they were exercising their rights. Magagula said a large sum of money, E30 million, was involved and the parties were entitled to legal avenues.

After adjourning the matter for slightly over 10 minutes, the court reconvened and Judge Dlamini said the court had come to a position.

“Unfortunately we will not enter into the appeal. Our hands are tied by the non-retraction of the publication. It was the reason we didn’t enter into the appeal in the first place. We cannot even give a date of the appeal. We cannot until the contempt has been dealt with and completed, set aside or overturned. That will then open the way,” said the judge.

Judge Dlamini said the court would issue a short judgment accompanying the order. He stated that the order would be communicated and served to the director of public prosecutions (DPP) to decide if he wanted to intervene because the matter was both civil and criminal. He said the court could not determine timelines.

jurisdiction

In SwaziMed’s review application, Principal Officer Peter Simelane said the order made by the Supreme Court in its appellant jurisdiction may be reviewed by the Supreme Court sitting as a review court in terms of Section 148(2) of the Constitution. The veracity of these allegations is still to be tested in court and Medscheme is yet to respond.

Simelane submitted that in chambers, where Medscheme’s representatives were to be introduced, the latter’s counsel was carrying with him a copy of the statement that appeared in the Times of Eswatini’s November 4, 2020 edition.  

He submitted that he was informed that two of the judges, Judge Dlamini and Judge Currie, allegedly also carried the newspapers with the statement ‘which the applicant had issued to update its members about the ongoing litigation with Medscheme’. 

He alleged that Judge Dlamini stated that the court wanted to register its displeasure about the publication of the statement and why it was published.

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