High Court Judge Bashier Vally
High Court Judge Bashier Vally

Non-existent affidavit used by judge in delivering judgment between Eskom and Econ Oil

By Thabo Makwakwa Time of article published Oct 11, 2021

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DURBAN - IN WHAT appeared to be a public admission of an erroneous judgment, High Court Judge Bashier Vally raised eyebrows when he told a panel that one of his judgments was made relying on a non-existent confirmatory affidavit in the matter between Eskom and the giant fuel supplier Econ Oil.

Last week during the recorded Judicial Service Commission (JSC) interviews for a Constitutional Court position, Judge Vally conceded that he had relied on a non-existent document when he delivered his judgment on a R14 billion contract involving Eskom and Econ Oil.

On June 29, Judge Vally delivered a judgment against Econ Oil, granting Eskom relief to review their decision to award the embattled fuel supplier the contract. The judgment was in favour of Eskom – to cancel the multibillion-rand contract with the company.

The dispute between Eskom and Econ Oil arose from a tender process that culminated in Eskom’s board resolving to award a contract for the supply of fuel oil to various bidders including Econ Oil, Sasol, and FFS refineries to the combined value of R14bn.

Judge Vally based his judgment on the fact that Eskom’s decision to award the tender was inconsistent with Eskom’s public procurement obligations.

In his judgment, Judge Vally cited a sworn confirmatory affidavit and claimed it was deposed by Eskom’s former legal head Bartlett Hewu.

Eskom Group Chief Executive Andre de Ruyter.

It was later discovered that the confirmatory affidavit was never delivered in the high court and never existed.

Hewu has since denied having deposed the confirmatory affidavit as alleged by Judge Vally.

Probed by IFP commissioner Narend Singh, who asked Judge Vally to explain a media article which alleged that he made an “immaterial error”, Judge Vally brushed the question aside, arguing that it was a minor error and he still believed his judgment was correct.

“Even if I was wrong that there was no confirmatory affidavit, it does not change the finding of fact because that finding of fact was based on numerous other evidence; lastly that finding of fact was also based on one small aspect of that case,” Judge Vally said.

He further mentioned that he had received more than 2 000 pages of affidavits from various current and former Eskom executives.

Judge Vally defended his decision by indicating that the case was a minor issue and said if he was wrong in his judgment then he will accept any possible outcome at the Supreme Court of Appeal (SCA).

Econ Oil boss Nothemba Mlonzi

Approached for comment, Econ Oil boss Nothemba Mlonzi said: “We filed a notice to appeal the said judgment; procedurally you ask for leave to appeal to the very same judge that had delivered the previous judgment and now we have asked for leave to appeal his judgment in a higher court (SCA). If the petition is granted, it means our door is open to go to … argue that the judgment was wrong.”

When the Daily News asked the JSC whether disciplinary action would be taken against Judge Vally, the spokesperson for JSC advocate Dali Mpofu said there was no complaint that had been laid with the JSC.

“In terms of the applicable legislation, there are no disciplinary proceedings. Should any of the parties seek any recourse in the matter the Rules of Court and applicable legislation may be invoked,” he said.

Former justice of the Constitutional court and chairperson of the Freedom Under Law, Justice Johann Kriegler, said that the error made by Judge Vally in his judgment was extremely embarrassing for the judiciary.

“Judges are human and may sometimes make errors in their judgments. It is not desirable but one can say that it could be due to work overload and other factors … ”

He added: “I can’t speak on the prospects of the JSC interviews in which Judge Vally was being interviewed, all I can say is there is always legal recourse for the affected party (Econ Oil)."

Daily News

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