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BID TO SEND NCAMASE DIRECTOR CALU TO JAIL

25/06/2024 07:30:00 Kwanele Dlamini

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MBABANE – The High Court has found the Director of Ncamase Investments (Pty) Ltd, Issufomia Calu and his company, to be in breach of a court order.

The order in question was issued on May 17, 2024, and it interdicted Ncamase Investments and Calu from removing Galp Eswatini (Pty) Ltd’s fuel tanks, canopy and other assets from the filling station at Big Tree Complex in Matsapha. It was argued on behalf of Galp that Calu and Ncamase did not comply with the court issued by Judge Titus Mlangeni, directing him and his company to restore Galp Eswatini (Pty) Limited’s assets at Big Tree Filling Station. Ncamase purchased Big Tree Complex recently.

The filling station was operated by Nur and Sam (Pty) Ltd, trading as Big Tree Filling Station, which is a company owned by Calu’s father. Last week, Galp filed an application at the High Court, seeking an order declaring Calu and Ncamase Investments to be in contempt of a court order of Judge Mlangeni, order of May 31, 2024. Galp also wanted the court to order Calu and his company to comply with the court order within 24 hours of the service of the order. Galp further prayed that Calu be directed to show cause by Thursday why he should not be sentenced to direct imprisonment not exceeding 30 days for contempt of Judge Mlangeni’s order.

The sentence, prayed Galp, is not to be suspended, on condition that the applicants (Calu and his company) comply with the order of Judge Mlangeni. The Managing Director (MD) of Galp Eswatini, Bruno Marques, in light of the alleged unlawful removal of Galp’s property by Ncamase Investments, launched an application at the High Court under Case No. 566/2024. Marques submitted that on May 17, 2024, in response to the alleged unlawful removal of Galp’s property by Ncamase Investments, Galp launched an ex parte application, whereby an interim order was sought.

The ex parte application (filed without Ncamase’s knowledge) was successful and culminated in an order granted by Judge Mlangeni in favour of Galp. The order was made returnable on May 31, 2024. Marques told the court that the net effect of the order was that it inter alia, interdicted Ncamase from removing any further property from the leased premises until the return date of May 31, 2024. On May 20, 2024, Ncamase filed a notice of appeal against the order. According to Marques, Ncamase adopted the stance that, the operation and execution of the order was suspended, through its filing of a notice of appeal.

“This stance was adopted by the first respondent (Ncamase), notwithstanding that it is clear from the order that it is of an interim and ex parte nature and is not final in effect with the result that it is not suspended by the service of a notice to appeal or subsequent appeal. “As a result, the respondents (Ncamase and Calu) failed to comply with the order dated May 17, 2024, notwithstanding being served with the order. The failure on the part of the respondent to comply with the order of May 17, 2024, caused the applicant (Galp) to launch another application in the High Court on May 22, 2022, whereby it sought an order declaring the respondents to be in contempt of court.”

The order of May 22, 2024 declared Ncamase to be in breach of the order of Judge Mlangeni, dated May 17, 2024. Galp is represented by Kenneth Motsa of Robinson Bertram in this matter. According to Marques, in October 2020, his company entered into a lease agreement with Ncamase, as directed by Moses Motsa. He said pursuant to the above, Galp entered into a franchise agreement with Nur & Sam (Pty Ltd (Big Tree) for a period of three years.

However, when the three-year period expired, Big Tree brought a legal challenge before the High Court, seeking a declaratory order and was successful in the Supreme Court on review. He said in 2019, the applicant (Galp) and the respondent (Ncamase), as represented by Theo Hlophe, (a representative of the shareholder Libuya Properties (Pty) Limited) entered into another lease agreement for the initial period of five years. Marques told the court that in October 2020, Galp and Ncamase entered into an addendum to the lease agreement in terms of which the lease period was to run from October 1, 2020 to September 30, 2025. Marques submitted that the lease agreement still subsists.

According to the MD, around July 2023, the respondent advised that Libuya Properties had sold its shareholding and that Calu (Big Tree director) was now the contact person. “Pursuant to this letter, I then held a meeting with Mr Calu and asked for formal documentation confirming that either himself, or Big Tree was now the shareholder of the respondent, but this was not forthcoming.”