GALP CASE: BIG TREE WANTS RECUSAL OF ALL FIVE JUDGES

MBABANE – Big Tree Filling Station Director Nurane Calu has alleged that Judge Phesheya Dlamini and former senators Ngom’yayona Gamedze and the late Mike Temple told him that he was wasting his time as they would get his business.

This is contained in an application in which the company wants all the five judges appointed to hear its review application against Galp Eswatini to recuse themselves from the matter.
Apart from Judge Phesheya, who is presiding, the bench comprises of Judge Majahenkhaba Dlamini, Acting Judge Mbutfo Mamba, Acting Judge Sabelo Masuku and Acting Judge Andreas Lukhele. Big Tree Filling station is seeking a review of the judgment of the Supreme Court to the effect that the franchise agreement between it and Galp Eswatini came to an end on September 30, 2020. The filling station wants the judgment to be set aside in its entirety and that Galp Eswatini be ordered to pay costs of the application.

Sell

The Director of Nur and Sam (Pty) Ltd, trading as Big Tree Filling Station, Calu, alleged that in 2015, he was called by former senator Ngom’yayona Gamedze, who allegedly asked him to sell to him business, Big Tree Filling Station. He said this was at the time the Supreme Court had issued an order that he should vacate the filling station premises by not later than August 2015. Calu said he told Gamedze that he was not selling the business. The director informed the court that he was aware that Gamedze was friends with the late Temple.

The veracity of these allegations is still to be tested in court. Big Tree Filling Station is represented by Mangaliso Magagula of Magagula and Hlophe Attorneys, while Galp Eswatini is represented by Kenneth Motsa of Robinson Bertram. Motsa had instructed South African Advocate Paul Kennedy, who has since died. Calu alleged that Gamedze, in the company of Temple and Judge Phesheya, at Malandela’s Restaurant in Malkerns, stated that he was just waiting his time because they would get the business, whether he liked it or not. He said at the time, Galp Eswatini was already pushing that he should hand over the keys to the business, which was then not operational, by the end of August that year.

Calu submitted that given that Judge Phesheya was allegedly friends with Gamedze and was with him at Malandela’s Restaurant when he made the purported utterances about wanting the business, he was uncomfortable that the judge could hear the matter. He said the reason was that Judge Phesheya’s friend, Gamedze, had previously expressed an intention to acquire the business and was with him at the restaurant, where the discussion was about acquiring the filling station.

Meeting

“I do not believe that His Lordship would be impartial in this matter given that his friend wanted the business and was in a meeting with him on at least one occasion where this was being discussed,” submitted Calu. He told the court that another ground, which would make him reasonably apprehend that Judge Phesheya may not be impartial in hearing the matter, was that he had recently expressed an opinion in a matter that involved KaFolish Filling Station and Total Eswatini.

One of the issues in the matter, according to Calu, was whether Section 19 of the Constitution applied. He submitted that in the KaFolishi matter, Judge Phesheya expressed an opinion that Section 19 did not apply, meaning that a retailer or owner of a business could be evicted without compensation for the business which it acquired pursuant to the termination. “In the review application, His Lordship will be called upon to decide the same question. One of the grounds for review is that the decision of the Supreme Court permits the compulsory deprivation of property and property rights without compensation and is in conflict with Section 19 of the Constitution. “His Lordship cannot sit in a matter where he has already recently expressed an opinion in an issue that is to be determined in the present proceedings for he cannot bring an impartial mind on an issue he will have to decide,” stated Calu.

Concerning Judge Majahenkhaba, Calu stated that he sat in the matter when it was on appeal before the Supreme Court in 2015. The matter concerned the franchise agreement and the Supreme Court, according to Calu, ruled that the filling station had no entitlement to remain in the premises and was to vacate within 30 days. This meant that the filling station would have had to vacate the premises without being compensated for his business, he submitted. Since the present matter involved the franchise agreement, Calu said his company had a reasonable apprehension that Judge Majahenkhaba would not bring an impartial mind to bear on the issues, which he had already expressed an opinion. Calu pointed out that Judge Majahenkhaba was part of the panel that decided the KaFolishi/Total matter by a two to one majority.

The majority decision decided that Section 19 of the Constitution did not apply where an oil company had terminated and acquired a business from an operator. In the current matter, he said the review court must decide whether Section 19 applied, that is whether an operator can be deprived of its business without compensation. “His Lordship has already expressed an opinion in an issue that he is supposed to decide in these proceedings. He cannot bring an impartial mind to the issue that he called upon to decide because he had already expressed an opinion on it.

Section 19 (1) states that a person has a right to own property either alone or in association with others. Sub-section 2 says a person shall not be compulsorily deprived of property or any interest in or right over property of any description except where the following conditions are satisfied -(a) the taking of possession or acquisition is necessary for public use or in the interest of defence, public safety, public order, public morality or public health; (b) the compulsory taking of possession or acquisition of the property is made under a law which makes provision for - (i) prompt payment of fair and adequate compensation; and (ii) a right of access to a court of law by any person who has an interest in or right over the property; (c) the taking of possession or the acquisition is made under a court order.

Disqualified

Judge Mamba, according to Calu, was allegedly disqualified from sitting in the matter on three grounds. The director informed the court that Judge Mamba dealt with the matter in 2015, where he was part of the majority decision which decided that Section 19 did not apply where an oil company acquired a business from an operator by reason of termination of the relationship.

“His Lordship expressed a view that Section 19 applies to an acquisition by the State or public institutions and not by private persons,” said Calu. He also submitted that in the 2015 proceedings, the issue was the franchise agreement. “In these proceedings it is the franchise agreement that is also an issue. The applicant (Big Tree Filling Station) already knew His Lordship’s view on it. The applicant does not believe His Lordship will bring an impartial mind on the issue of the franchise agreement and Section 19 having already expressed an opinion,” added the director.

Calu said thirdly, Judge Mamba was appointed by Chief Justice Bheki Maphalala, whom the filling station had filed a complaint against. He said he was informed by his attorneys that in chambers Judge Mamba stated that he was appointed by the Judicial Service Commission (JSC). However, Calu said the JSC did not have powers to appoint judges. He stated that he believed that the acting appointment of Judge Mamba would expire today and in terms of Section 153(2), it cannot be reviewed, meaning that he cannot hear the review application after today.

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