JUDGE CHARGES SENIOR LAWYER FOR CONTEMPT OF COURT

MBABANE – There was a surprise in the High Court when Judge Titus Mlangeni charged senior lawyer and President of the Law Society of Eswatini, Mangaliso Magagula, with contempt of court.

The contempt, according to Judge Mlangeni, stems from a matter between Galp Eswatini (PTY) Limited against Ncamase Investments (PTY) Limited and its Director Issufomia Calu, which was not on yesterday’s roll.

The contempt of court proceedings was at the instance of the court, against Magagula of Magagula and Hlophe Attorneys.

Magagula was in court for an urgent application filed by EswatiniBank against Eswatini Med when the charges were preferred against him. The bank wants to interdict Eswatini Med from terminating the membership of 165 of its employees.

The matter between Galp Eswatini (PTY) Limited and Ncamase Investments is pending in the Supreme Court.  Judge Mlangeni stated that in the numerous grounds of appeal, Magagula repeatedly and extensively referred to an ex parte application of May 17, 2024, as a ‘secret hearing’.

Hearing

The hearing in chambers, which was referred to by Ncamase Investments and its director as a ‘secret hearing’ was to interdict Ncamase Investments from continuing to remove Galp’s fuel tanks, canopy and other assets from the Big Tree Filling Station.

The judge, in a statement of facts he read to Magagula yesterday, stated that at all times material, said Magagula acted as an attorney of record for Ncamase Investments (Pty) Ltd (Ncamase).

He stated that on May 17, 2024, the court heard the ex parte application that was moved on grounds of urgency.

He said the court issued an interim restraint order against Ncamase, returnable on May 31, 2024, upon which date Ncamase was to show cause why the interim order should not be made final.

“In response to the interim order attorney Magagula filed an appeal to the Supreme Court against the said order. This was done without leave of court as required by law. “In the numerous grounds of appeal Magagula repeatedly and extensively refers to the ex parte application of May 17, 2024 as a ‘secret hearing’,” said the judge.

This, according to the judge, was mentioned in five of Ncamase’s grounds of appeal.

He further mentioned: “The notice of appeal and the grounds thereof received extensive coverage in the local print media. The reference to ‘secret hearing’ is maintained by Magagula in Supreme Court Case Number 51/24, in which he is moving a Section 148(1) application on behalf of Ncamase, arising from the same ex parte application.

“The phrase ‘secret’ subsequently popped up in the Times of Eswatini dated July 11, 2024 page 4, a sure sign that it was blossoming.”

Proceedings

Judge Mlangeni further stated that in opposing the contempt proceedings against Ncamase and Calu, the expression ‘secret hearing’ was again used extensively in the opposing affidavit, which he said was common cause, that it was drafted by Magagula for his client to depose to.

“Further, in paragraph 8.22 of the opposing affidavit, there is a gusty suggestion that the court is defeating the ends of justice which, of course, is the ultimate attack upon the court. Generally, you have cunningly used the medium of your client’s affidavit to unleash a broadside against the court.

“Prima facie, Magagula’s description of ex parte proceedings as ‘secret’ is a deliberate perversion of lawful and established procedure that is used nationally and internationally, and the apparent intention is to impute unethical, devious, improper and or mischievous conduct on the part of the court,” he said.

This, according to the court, prima facie impairs the dignity and integrity of the court and, therefore, contemptuous to the court.

He pointed out that there are two aggravating factors, being that: “Magagula is a senior member of the legal fraternity with considerable experience and he knows fully what an ex parte application is; he is the current president of the Law Society of Eswatini and therefore expected to lead by example in every respect. As an officer of the court, Mr Magagula’s first duty is to respect and protect the court,” the judge further said.

Judge Mlangeni yesterday ordered that as follows: “On the basis of the aforegoing, attorney Magagula ‘is hereby ordered and directed to appear in person before the court of Justice T.M. Mlangeni on April 11, 2025, at 9:30am, and to remain there until otherwise released by the court, and there and then to show cause why he should not be declared to be in contempt of court and sentenced as the court may deem appropriate.”

The effect of this order yesterday was that Eswatini Med, after Magagula had been charged and remanded out of custody, Eswatini Med was left without an attorney for its matter against EswatiniBank. Peter ‘Samora’ Simelane told the court that the medical aid fund was no longer represented since Magagula had left the court. Simelane could not make an undertaking that Eswatini Med would not proceed to terminate the bank employee’s membership, whose deadline was yesterday. Simelane said Eswatini Med would require appointing an attorney for the matter.

Irregularity

In the appeal filed by Ncamase Investments and Calu last year, the grounds on which Judge Mlangeni based yesterday’s order in part, the latter submitted that Judge Mlangeni committed an irregularity by entertaining Galp Eswatini (Pty) Ltd’s contempt application against him in his absence.

Judge Mlangeni sent Calu to jail for 90 days after he found him to have committed contempt of court in that he and Ncamase Investments continued to remove Galp’s fuel tanks, canopy and other assets from the filling station.
Ncamase and Calu had appealed the order interdicting them from removing anything from the filling station.

Galp challenged Ncamase’s decision to terminate the lease agreement between the parties and the matter is yet to be finalised.

Ncamase terminated the lease after Galp allegedly refused to supply fuel to the filling station.

Calu was released from custody after three days into his sentence of 90 days. However, Judge Mlangeni restated the sentence of 90 days.

In Calu and Ncamase Investments’ amended grounds of appeal, they argued that they were not represented when Judge Mlangeni entertained contempt of court proceedings and referred to the proceedings as a secret hearing.

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