Swazi Observer

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SWAZIMED INSISTS ON REVIEW PROCEEDINGS

By Andile Nsibande | 2021-03-01

High Court SWAZIMED has tabled more details why they opted to institute review proceedings when they were expected to comply with an order directing them to retract a media statement.

The latest court action by the medical aid fund arose from the written judgment of the Supreme Court on December 1, 2020.

The judgment was a sequel of proceedings on November 24, where judges of the Supreme Court expressed their discontent over the company failing to comply with an earlier court order where they were instructed to retract a statement that had been published in the media on the day the court was supposed to decide on an appeal in the matter between Swazi Med and Medscheme.

Shocked and surprised, the Supreme Court judges refused to be ‘captured’ by a litigant, and took seriously the adamant stance by Swazi Med against complying with the order instructing them to apologise and further retract the media statement.

In a judgment issued subsequent to the failure by SwaziMed to retract an article which appeared in the print media on the day the court was to hear the appeal by Medscheme Administrators Swaziland against the former, the five judges reiterated their stance to ignore the subsequent review proceedings and considered imposing an appropriate penalty on the officers or chief officers of SwaziMed for unlawfully and intentionally disobeying the court order.

The judges maintained their opinion on the media article, which they viewed as nothing but a ploy to have the outcome of the appeal proceedings influenced in a way.

They insisted that the authors of the article had to first purge themselves of the contempt before normal relations with the court could be restored. They were adamant in their view of the review application by SwaziMed as a cover for refusal to comply with the court order for retraction.

The application for review had been instituted by SwaziMed in terms of Section 148(2) of the Constitution.

In the latest court application, which is pending before the Supreme Court, it can be deduced that SwaziMed strongly believes that they were entitled to be heard on the review because they had raised a relevant complaint before the judges who presided over the matter and went on to make findings of contempt orders.

affidavit

In a supplementary affidavit that was deposed to by the Principal Officer at SwaziMed Peter Simelane, the company maintains that they had to be heard first on an initial application to have four judges sitting on the panel that heard the matter recuse themselves on the grounds that they were disqualified from sitting in the appeal.

The company argued that the action by the judges to continue sitting in the matter, when they should have recused themselves, rendered the proceedings a nullity and liable to be set aside by the court sitting as a review court in terms of Section 148(2) of the Constitution.

“The applicant was denied the right to have its rights determined by an independent and impartial court as prescribed in Section 21 of the Constitution. Section 21 of the Constitution is part of the fundamental rights and freedoms which, in terms of Section 14(2) of the Constitution, courts are enjoined to respect and uphold.

contravened

“The Supreme Court on appeal contravened the constitution by refusing to hear the recusal application and continued to make findings and orders when some of the judges in the panel were disqualified from sitting,” argued Simelane.

He maintained that the proceedings of the day in question did not comply with a hearing as prescribed by Section 21 of the Constitution, in that the court was not independent and impartial since four of the members of the panel had allegedly been disqualified from sitting in the matter.

He further claimed that the company was not afforded the right to a hearing prior to the findings of contempt being made. He said the judges had gone ahead and made a decision to the effect that the statement that had been published in the media was contemptuous without affording them the chance to be heard.

“The proceedings of November 4 and 24 were merely meant to direct the applicant into withdrawing the statement. It was not a hearing on whether the statement was contemptuous.

“Contempt of court has serious civil and criminal implications. A person can only be found guilty of contempt after a fair hearing.

But the Supreme Court made the findings of contempt without affording the party accused of being in contempt a fair hearing. The failure to afford the party the right to a fair hearing before a decision was made is a reviewable irregularity liable to be set aside in terms of Section 148(2) of the Constitution,” declared Simelane.

He insisted that the orders were arrived at by the court arbitrarily and capriciously. SwaziMed in the matter is represented by lawyers from Magagula Hlophe Attorneys and the respondents are yet to file their responding papers.

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