Businessman Issufo Calu has accused High Court Judge Titus Mlangeni of crossing a critical line in exercising judicial authority.
Calu made the allegations in his complaint which was submitted to Chief Justice Bheki Maphalala, with copies delivered to the ministry of justice and the attorney general’s office.
In the complaint, filed in his capacity as director of Ncamase Investments (Pty) Ltd, Calu invokes Section 158 of the Constitution of the Kingdom of Eswatini, 2005, which provides for the lodging of complaints against judicial officers for misbehaviour.
The complaint centres on two main allegations: first, that Judge Mlangeni allegedly heard an opposed application at Galp’s request without notifying Ncamase and without the matter being heard in open court, resulting in a final order against Ncamase in its absence.
Second, that the judge allegedly issued an order for Calu’s arrest and incarceration based on an application that had not been issued by the registrar and in which such an order had not been sought.
According to Calu, Galp’s Managing Director Bruno L. Marques requested Judge Mlangeni to hear the opposed matter in the absence of Ncamase, behind closed doors, and outside the scrutiny of open court.
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The businessman alleged Galp itself admitted that Ncamase opposed the application, yet the judge entertained the request.
Calu alleged that the result was a “secret hearing” between the judge and Galp’s legal representative Kenneth Motsa of Robinson Bertram, which led to an order adverse to Ncamase.
Calu alleged that the result was a secret hearing, held solely between Judge Mlangeni and Galp’s legal counsel, in an opposed matter. He alleged that this was not justice.
He stated that Galp itself had asked that the matter not be heard in open Court.
He argued that the exclusion of Ncamase was deliberate and constituted for denial of justice. By agreeing to Galp’s request, Calu claimed, Judge Mlangeni became entangled in the very dispute he was meant to adjudicate.
Order for Calu’s arrest was not signed by registrar
CALU has further insisted that none of the prayers in Galp’s application sought his arrest and incarceration, yet Judge Mlangeni ordered exactly that.
He described his arrest as arbitrary, unlawful and an extreme abuse of power.
The businessman attached what he said was the court order for his unlawful arrest and incarceration, dated August 3, 2024, which revealed that it was handwritten and irregular.
According to the complaint, the order was granted without hearing Ncamase or Calu. He alleged that attempts by his legal representatives to make representations before the order was issued were dismissed outright by Judge Mlangeni.
After issuing the order, Calu alleged that Judge Mlangeni left court, directing that he be immediately arrested and incarcerated.
According to Calu, the document was he alleged that typed not by court officials but by Ms. Nsibande, an articled clerk from Robinson Bertram, using the judge’s secretary’s computer.
“Galp, a private litigant, used State resources for its own personal gain.
They could have been permitted to do so by the Judge or his clerk, as this was done in the judge’s secretary’s office, which is part of the judge’s chambers,” Calu stated.
Calu claimed the order was not signed or stamped by the registrar as required. Instead, it bore the stamp of the Civil Registry of the High Court. According to Calu, neither the registrar nor any deputy registrars were present at the time, meaning the order was signed and stamped by either the judge’s clerk or Ms. Nsibande, neither of whom had authority to issue court orders.
He describes this as further proof that his arrest and incarceration were unlawful, as the court order had been issued ultra vires.
“The court order was typed, printed and signed in the judge’s secretary’s office and immediately given to the members of the Royal Eswatini Police Services to execute. A contingent of police were gathered around the vicinity of the court way before the proceedings commenced,” Calu stated.
He said the police maintained presence in and around the court throughout the proceedings.
“After Justice Mlangeni had issued the order while Calu was consulting with his legal representative, the police approached him carrying the unlawful court order and effected the court order,” reads the complaint.
Calu alleged that the unlawful arrest and incarceration were a result of an orchestrated and concerted effort.
“Motsa was able to enrol the application without the registrar and get Justice Mlangeni to hear the application on a Saturday.
Judge Justice Mlangeni not only accepted the unissued application, but he also granted orders based on the unissued application without hearing Ncamase and Calu’s legal representative,” Calu submitted.
Judge’s actions had catastrophic consequences
CALU has alleged that Judge Mlangeni’s actions had catastrophic consequences.
He argued that it is serious misconduct for a judge in opposed proceedings to meet a litigant and its attorneys in the absence of the other party as well as conduct a hearing in secret.
He alleged the judge’s conduct was unlawful, rendering every action and decision arising from the order null.
According to the complaint, the consequences included denial of the right to a fair hearing, job losses, deprivation of rights to property and economic rights, and deprivation of personal liberty.
Calu alleged that the judge, after granting an order that was final in effect, went further to enforce it while disregarding appeals noted against the order. He accused Justice Mlangeni of tampering with the order to make it appear as though he had granted Prayer 5 as part of a rule nisi, after Ncamase raised in its appeal that the order was final in effect and therefore appealable.
He argued that this tampering was intended to benefit Galp and prejudice Ncamase by presenting the order as purely interlocutory and therefore not appealable, allowing the judge to continue presiding over the matter even when it was under appeal. Calu says this led directly to his unlawful arrest and imprisonment as director of Ncamase.
The businessman further alleges that Judge Mlangeni’s conduct amounts to serious misconduct and corrupt activity.
He claimed the judge tampered with the order to aid and favour Galp during judicial proceedings.
According to the complaint, the judge abused his position of authority and violated the rule that once a final order was granted, the judge becomes functus officio and cannot change or vary it. Calu stated that Judge Mlangeni was no longer independent and impartial, having taken a position in favour of Galp.
“The fact of the matter is that Prayer 5 was an order granted in a secret hearing and it had a final effect and could not be altered or re-issued in any form.
It was granted with finality at a hearing where Ncamase was not represented,” Calu alleged.
He added that it was unlawful and corrupt for Judge Mlangeni to alter or tamper with the order in a plot to defeat a legal process and conceal the fact that he had granted a final order against Ncamase in its absence. Calu further alleged that this conduct amounted to interference with the administration of justice, violation of the judicial oath of office and the judicial code of ethics, as well as criminal conduct under the Corruption Act and the Leadership Code.
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