MBABANE - Gloomy, dazed and livid!
These adjectives describe the reaction of the investors who were at the High Court yesterday, after learning that the two former directors of Ecsponent Limited Swaziland, Dave Van Niekerk and Edwin J Soonious, had puzzlingly left the country. On Monday, the court issued an interim order preventing the duo from leaving the country after an ex parte application was filed by ESW Investment Group Limited. It could not be ascertained when the duo left, however, it was gathered that Van Niekerk reportedly left through the King Mswati III International Airport on Monday evening, while Soonious is said to have departed via Ngwenya Border Gate on Tuesday, as per their attorney. An ex parte application is used for one party to ask the court for an order without providing the other party the usual amount of notice or opportunity to write an opposition.
Interdicting
The court had directed the Royal Eswatini Police Service (REPS) and the Ministry of Home Affairs (Immigration Department) to assist in the execution of the order interdicting the two from leaving the Kingdom of Eswatini. Officials from the Immigration Department had been directed to flag and advise police officers upon seeing Van Niekerk and Soonious leaving the Kingdom of Eswatini through any of the entry or exit points. The departure of the former directors was disclosed in court yesterday and it left those present, especially the investors, disenchanted. The investors, including management of ESW Investment Group Limited, had filled Court F in anticipation to hear how the matter would proceed. Dejection and disappointment was written all over their faces, with some saying they suspected foul play in the manner in which the former directors left the country after the court order. The duo had not been charged with any wrongdoing.
The duo’s lawyer, Zweli Jele, said he was not personally seized with the matter but was advised by attorney Jasmine Dlamini from his office, that she was informed that the duo reportedly left because they were allegedly not served with the court order. Yesterday, they were expected to show cause why the interim order should not be made final. It was after the matter had been called that ESW Investment Lawyer Sidumo Mdladla stood up to inform Judge Justice Mazwi Mavuso that he had been advised by Jele, who was representing the respondents (Van Niekerk and Soonious), that the duo had already left the country. He averred that the purpose of the application had been defeated. “Now that they are gone, the application is inconsequential. On Tuesday, we were advised that they would be leaving on August 3, 2023 through King Mswati III International Airport,” averred Mdladla.
He said it was a pity that when they served the order on Tuesday, they were told that the two arrived in the country on Monday and they were expected to fly out on Wednesday. “We were advised by the police that they were served with the order and the respondents were flagged, but the situation has changed. My learned friend advised me that they had not been served. It was only yesterday (Tuesday) that we received a notice of intention to oppose from lawyers from Robinson Bertram, which is an indication they were aware of the order,” argued Mdladla.
He averred that when the former directors left, they were aware of the court order, especially the second respondent (Soonius). He contended that they were shocked to learn that the respondents had left the country as when they communicated with the police, he was advised they were flagged in all the exit and entry points.
Jele on the other hand, informed the court that he was not personally served with the order. He said his instruction was that he should file an answering affidavit to the application. “Clients were never served with any court order. Dave Van Nikerk left on Monday night. Edwin Soonious left on Tuesday morning. We were never served with any order,” submitted Jele. He further submitted that after reading the papers, they communicated with lawyers in South Africa as they did not have contacts with the wanted persons. “We were instructed to file a notice to oppose in anticipation of being served with the application and court order. None was served until Edwin left. He said they had business interest in the country and they wanted to come in and out to do business, hence they wanted the court order to be set aside,” he said.
Served
He alleged that by the time he went to court, none had been served and same was allegedly only served afterwards. It was further his submissions that in the event the applicants decided to withdraw the matter, his instructions were to ask for wasted costs. In response, Mdladla said it was rather cheeky for the respondents to be asking for costs given the very unfortunate circumstances of the matter at this stage. He said they would not be paying any cost and insisted that the matter should be postponed. Mdladla asserted that for now, they needed to investigate the circumstances under which the duo left the country and come back to court to report what happened.