COURT ORDERS SWAZIMED TO WITHDRAW STATEMENT

MBABANE - The Supreme Court has ordered SwaziMed to withdraw its statement published on Tuesday and yesterday in the print media.

SwaziMed was also ordered to apologise for publishing the statement and to furnish the registrar of the High Court with the corrective statement for the approval of the court. The order was issued by Supreme Court Judge Majahenkhaba Dlamini, while sitting with Judge Stanley Maphalala, Acting Judges Sabelo Matsebula, Justice Mavuso and Judy Currie.

The court had convened to hear the appeal that was filed by Medscheme after a full bench of the High Court issued a ruling to the effect that the arbitrator, retired Judge Philip Levinsohn, exceeded his powers in making an award of E30 million to Medscheme based on a tacit agreement. The full bench found that the arbitrator had acted illegally by creating a tacit agreement for the parties.

Agreement 

The arbitrator had found SwaziMed to be in breach of the management agreement between the two parties in that, it unlawfully terminated it (agreement).

Before the court convened for the appeal yesterday, the parties met the judges in a private room near the courtroom for about 15 minutes. When the court was to proceed with the matter, senior lawyer Mangaliso Magagula of Magagula and Hlophe Attorneys, addressed the court. 

However, Judge Dlamini interjected and drew the parties’ attention to the statement that was published in the print media for a number of days, including yesterday. The judge said the court was shocked at the timing of publishing the statement by SwaziMed. The statement is titled ‘Update to SwaziMed members on the ongoing court case between SwaziMed and Medscheme.’

“Those responsible for the publication of the article; why publish it today?” enquired Judge Dlamini.

Magagula, who represents SwaziMed in the matter, told the court that the purpose of the statement was to update the medical scheme’s many members in the country on the court case.

“This is a question of the client updating its members about a critical matter which involves millions of Emalangeni. SwaziMed has a duty to update its members since the money belongs to thousands of working people in the country, so we should explain to them what could happen if they lose a significant amount of money.

“It is an update to say; here is your money, it could be taken out of the kingdom. It is an update on a material issue, which is E30 million that could be taken away,” said Magagula.

He told the court that members of SwaziMed had an interest to know and be updated about the court case since their contributions would be taken out of the country and they would be left poorer if the court ruled in Medscheme’s favour.

Judge Dlamini asked: “You mean you see nothing wrong with the article?”

 “There is nothing that it untrue about the article,” said Magagula. Judge Dlamini further enquired if Magagula or SwaziMed found nothing contemptuous about the published statement. 

Magagula maintained that there was nothing untoward about publishing the statement. He added that what was mentioned in the statement was contained in SwaziMed’s court papers about the ongoing case.

Advocate Paul Kennedy, who has been instructed by Kenneth Motsa of Robinson Bertram, said he was deeply troubled to hear Magagula repeatedly informing the court that there was nothing wrong with the statement.

Statement 

The advocate said an attorney had a duty to defend a client and the Judiciary, as well as the rule of law. He mentioned that SwaziMed also published a statement in the print media while the matter was pending before a full bench at the High Court.

This, according to Kennedy, had been viewed as troubling and directed to pressure the court. He said the issue was raised previously by the full bench and he assumed that Magagula had conveyed the concerns of the court to his clients and that it was not to happen again. However, the advocate said SwaziMed was unrepentant.

He said despite that the matter was raised in chambers, there was no attempt by SwaziMed to retract the statement. 

“They are absolutely unrepentant,” Kennedy said and described the statement as political and scandalous. He denied that it was an update to members of the medical scheme. Kennedy also said the statement was contemptuous and could have serious implications.

The advocate further denied that members of SwaziMed had an interest in the matter. This prompted Magagula to say Advocate Kennedy could not say that in his home country, South Africa. Advocate Kennedy highlighted that, according to the published statement, SwaziMed stated that it was entitled to the E30 million ‘regardless of what the law says’. The statement states in part that Medscheme was given a ‘windfall’ they did not work for.

The advocate said this was defamatory to his client, Medscheme and it undermined the rule of law. He said this was a matter of national interest.

When issuing the order, Judge Dlamini said the matter would not proceed until the statement was withdrawn. The court postponed the matter indefinitely.

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