BIG TREE THREATENS CJ WITH CRIMINAL CHARGES

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.

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