CHIEF JUSTICE ACCUSED OF INTERFERENCE IN MATTERS AGAIN

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.

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