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BIG TREE CASE: NGOMA DENIES ACQUISITION BID

14/03/2022 08:47:00 Kwanele Dlamini

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MBABANE – Former Senator Ngom’yayona Gamedze has denied pressuring Nurane Calu into selling him his filling station.

Calu is the Director of Nur and Sam (Pty) Limited, trading as Big Tree Filling Station located in Matsapha. Calu alleged that Gamedze, in the company of the late Senator Mike Temple and Supreme Court Judge Phesheya Dlamini, at Malandela’s Restaurant in Malkerns in 2015, said he (Calu) was just wasting his time because they would get the business whether he liked it or not. Calu said the Supreme Court had issued an order that he should vacate the filling station premises by not later than August 2015. This is contained in the application filed by Big Tree for the recusal of Judge Phesheya Dlamini, Judge Majahenkhaba Dlamini, Acting Judge Mbutfo Mamba, Acting Judge Sabelo Masuku and Acting Judge Andreas Lukhele.

Recuse

Big Tree wants the judges to recuse themselves from hearing its review application concerning the correctness of an October 2020 High Court decision granting a spoliation order in favour of the filling station, which found that Galp Eswatini was obliged to restore the supply of fuel and related products to the applicant (Big Tree). In his affidavit, which is attached to Galp Eswatini’s answering papers, Gamedze said he was surprised last Monday to read from the Times of Eswatini and the Eswatini Observer that he had pressured Calu to sell his filling station business to him. He informed the court that after reading the newspaper articles, he called Galp Eswatini’s attorney, Kenneth Motsa of Robinson Bertram, to get clarity on how he featured in the matter. He stated that Motsa showed him the relevant paragraph’s in Calu’s affidavit last Wednesday.

Gamedze denied being friends with Judge Phesheya. He said in the few occasions that he met with him, it was in the company of Temple, who was a mutual friend. He said he knew Calu in his capacity as the chairman of the Petrol Association. He alleged that Calu used to call him a number of times to lobby him and the late Temple on issues involving the industry where there were Bills or regulations or other issues which involved the industry in Parliament and they would assist where they could. “I further wish to state that at no stage did I ever call Calu to ask him to sell me his filling station. In any event, if I wanted him to sell the filling station to me, I would have written him a formal letter proposing such a sale, as I have done in previous transactions where I bought a filling station under the Puma franchise. This was crucial as any agreement I would have with Calu would have to be agreed by the franchisor,” Gamedze said.

The veracity of these allegations is still to be tested in court. He also denied ever meeting Calu at Malandela’s Restaurant and making utterances in front Judge Phesheya to the effect that he would acquire the filling station. Galp Eswatini Marketing Director, Fannie Mthethwa, in the answering papers to Big Tree’s recusal application, disputed that Gamedze had approached Calu at any stage, whether telephonically or otherwise, to ask him to sell the filling station to him, ‘nor did he make any utterances that the applicant (Big Tree) was wasting time’.

“It hardly bears mentioning that the respondent (Galp Eswatini) does not simply allow anyone to become a franchisee. It has a comprehensive set of procedures and processes to be followed when advertising, short-listing and appointing a franchisee. “Senator Gamedze would not in any event have been able to simply secure a franchise over a cup of coffee since the decision of who is to assume the role of franchisee lies with the respondent’s managing director,” Mthethwa submitted. He informed the court that not only was Gamedze not friends with Judge Phesheya, there was allegedly no evidence to prove that the judge himself had any interest in acquiring the franchise from Galp Eswatini either individually, through a corporate vehicle or through a consortium or that he expressed an interest to do so”.

Uncomfortable

“To say that he feels ‘uncomfortable’ with the learned judge adjudicating the matter, which does not concern any of the facts referred to in these paragraphs is with respect not sufficient to give rise to a reasonable apprehension of bias.” The marketing director informed the court that Calu knew that Big Tree could not simply sell or cede its franchise, but required the consent to do so for a new operator appointed by Galp Eswatini to take charge of the operations of the business. In 2015, according to Mthethwa, when the interactions are alleged to have taken place, the dispute between Big Tree and Galp Eswatini was limited to the renewal or non-renewal of the franchise agreement.

Galp Eswatini, submitted Mthethwa, never reached the point of seeking a new franchisee as the next logical step of a failure to renew the franchise agreement would have first meant that the respondent would have one to the open market, which never happened in this case after the court ruled in favour of Big Tree. The marketing director further submitted that for Calu to say he felt uncomfortable with Judge Phesheya adjudicating the matter, which allegedly did not concern any of the facts referred to, was with respect not sufficient to give rise to a reasonable apprehension of bias.

On another note, Mthethwa informed the court that in its scope, for the judges to recuse themselves, which by implication carries the consequence that Big Tree does not seek relief based on any genuine legality concern, since relief premised on a challenge of this nature would be differently formulated and would not call for their recusal. He said Big Tree, as a matter of substance, having regard to its claims, allegedly accepted that the current composition of the five panel bench, did not imply any legality issue.

Requirements

Mthethwa alleged that Big Tree failed to meet the requirements of a recusal of the judges. He accused Big Tree of not being a reasonable litigant. “It has litigated the issues arising from this application in the press as appears in the two articles that appeared on Monday March 7, 2022 in the Eswatini Observer and the Times of Eswatini respectively. The applicant does not meet the threshold for a recusal challenge as it simply does not possess the attributes of a litigant. “The nature of the ill-mannered and intemperate statements attributed to Calu in the articles leaves little doubt that the applicant does not have a reasonable apprehension of bias as it is not the reasonable person and does not rely on reasonable grounds to say the least when applied to the facts to say the least when,” Mthethwa told the court.

According to Mthethwa, Big Tree allegedly resorted to speculation on a host of factual issues which did not support a reasonable apprehension of bias. He said in other words, the application was allegedly not brought on reasonable grounds applied to the facts before the court. The matter is pending before court.