Prominent Eswatini lawyer, Mangaliso Magagula, faces a personal D-Day: he has been charged with contempt of court by high court judge Titus Mlangeni who said the evidence indicated, on the face of it, that Magagula had committed contempt by undermining the integrity of the court. Now the controversial attorney must return to court to answer the charges and, if convicted, to be sentenced. What raises the stakes even higher is that Magagula is the president of Eswatini’s law society.
So, how did this extraordinary situation arise?
Attorney Mangaliso Magagula, of the legal firm Magagula and Hlophe in Mbabane, Eswatini’s legal and administrative capital, is no stranger to controversy. But this is the closest he has yet come to a guilty finding on any matter.
On Monday last week, Magagula was scheduled to appear in a high court dispute where Titus Mlangeni was the judge presiding. Before the case due for argument that morning was heard however, the judge announced that he would first be dealing with a different matter. This concerned the case of Galp Eswatini v Incamase Investments, another legal dispute in which Magagula was involved as counsel. The case also involves Incamase’s director, Issufomia Calu.
Aspersions undermined court’s integrity
The judge said that papers related to the Galp case, filed by Magagula in the supreme court as part of an appeal, were framed in such a way that they amounted to contempt of court. This was because the aspersions in the papers undermined the court’s integrity.
Mlangeni first summarised the background: on 17 May 2024, Galp brought an urgent application ex parte – without giving notice to the other side – against Ncamase before Mlangeni. The judge duly granted an interim order against Ncamase, and the matter was due back in court on 31 May 2024 for full argument from both sides on whether the order should be extended and made final.
So far, all this is perfectly normal procedure: cases are often brought without notice to one side and, where a court is persuaded that an existing situation should be frozen until the matter can be properly argued by all parties concerned, a court will grant a temporary order maintaining the status quo until the issue can be fully addressed by everyone. But, in the Galp matter, this normal practice was about to be challenged.
‘Secret hearings’ claim
First, Magagula brought an appeal against the interim order to the supreme court, but without obtaining leave of the high court to do so, as is required. It is also strange that Galp appealed an interim order, rather than contesting the matter by way of argument when the case came back to court.
However, what concerned the judge most were the grounds for appeal, put up by Magagula. In his court papers, Magagula repeatedly refers to the perfectly normal ex parte procedure adopted in the Galp case as ‘secret hearings’ between the judge and one party to the dispute.
In a related aspect of the Galp case, the company’s director, Issufomia Calu, also Magagula’s client, did not obey the high court interdict by the judge, but removed property that the court had said should not be disturbed until the matter was properly argued on the return date. After Calu removed the property in defiance of the court order, Mlangeni, found Calu guilty of contempt of court and sentenced him to 90 days in prison.
‘Ultimate attack’ on a court
However, in his affidavit opposing this contempt conviction, Calu used the same language adopted by Magagula in the appeal papers. Calu also referred to the ex parte order as having resulted from a ‘secret hearing’ between the judge and the legal representatives of Galp. Mlangeni said the phrase ‘secret hearing’ was repeated extensively in Calu’s affidavit and that there was no dispute that the affidavit was drafted by Magagula.
According to the judge, Magagula’s papers then went even further, ultimately making what the judge said was ‘the ghastly suggestion’ that the high court, presided over by Mlangeni, was trying to defeat the ends of justice. This insinuation was the ‘ultimate attack’ on a court, said the judge.
Mlangeni was also concerned that Magagula’s numerous ‘secret hearing’ aspersions were picked up and amplified by local publications, so that these claims then ‘blossomed’ via the media.
Unethical, devious conduct attributed to court
He said that Magagula had ‘cunningly’ used the affidavit of Calu, his client, to ‘unleash a broadside against the court’. Further, the description of ex parte proceedings as secret hearings was a ‘deliberate perversion’ of a lawfully established procedure used nationally and internationally.
By attributing unethical, devious, improper and mischievous conduct to the court, Magagula was, on the face of it, impairing the dignity and integrity of the court and thus acted contemptuously, said the judge.
He added that what made matters worse was the fact that Magagula was a senior member of the profession who should know better. On top of that, he was the president of the law society, and should lead by example. And finally, as an experienced attorney, he should know that his first duty was to protect the court.
Dumbfounded counsel?
Mlangeni then said Magagula had to appear in court to explain himself and answer the charges. However, as it was a serious matter, Magagula should first have time to prepare his response. The judge’s written charges against Magagula, that he had just read out in court, were then handed over to the attorney himself, and the judge asked for suggestions from Magagula about suitable dates for the hearing.
This was followed by a prolonged period of silence from Magagula, prompting the judge to ask, ‘Are you dumbfounded?’ ‘Not really,’ Magagula replied.
After Friday 11 April was agreed for the hearing on the contempt charges, Magagula left the court room.
From Mlangeni’s sharp response to Magagula’s comments in the Galp matters, it seems that perhaps the court in Eswatini, sometimes viewed as less than firm about its authority in the face of determined, even bullish, counsel, is now asserting itself and demanding that it and its orders be respected.
(Written on 6 April 2025)