A high court judge is facing an investigation of misconduct by the Judicial Service Commission (JSC) for including non-existent evidence in a judgment he handed down last year in favour of Eskom in a controversial fuel oil case. He has unconditionally apologised for his error.
Judge Bashier Vally’s admission to commissioners during a recent JSC interview for a seat at the Supreme Court of Appeals (SCA) is likely to thrust Eskom’s controversial fuel oil supply contract with Econ Oil and Energy back into the spotlight.
Vally told commissioners that Econ Oil had laid a misconduct allegation against him for relying on non-existent evidence in his adverse judgment against the company that he handed down.
Vally said during the interview:
Vally was responding to a question from the Deputy Chief Justice, Mandisa Maya, relating to a City Press story last year that revealed how Vally had claimed that ex-Eskom acting legal head Bartlett Hewu had submitted a confirmatory affidavit when he had not.
His ruling cost the national power producer’s long-time fuel oil supplier Econ Oil a contract worth R8 billion to supply fuel oil to 11 Eskom power stations across the country.
Econ Oil previously supplied all of Eskom’s 16 power stations for five years from 2012 to 2017.
The now reviewed and overturned 2019 fuel oil supply contract by Vally was split between Sasol, Econ Oil and FFS Refiners.
Maya questioned Vally’s dismissive demeanour of the complaint and whether this was his general attitude.
To which Vally responded: “This was a special motion and the papers before me were over 4 000 pages. This is one matter that taught me to be careful till working late at night all alone with all these papers (sic).”
City Press reported last year that not only did Vally include the non-existing evidence in his final judgment in favour of Eskom, but he in fact also relied on it and even went as far as commenting on it.
“Perhaps now that they have petitioned the SCA for leave to appeal, perhaps the SCA will take a different view because it has been brought to their attention that there is an error in this judgment. Which error is simply, did Mr Hewu confirm? I said he did and that was wrong. It is regrettable.
“It was a very large, voluminous matter. But, I regret the error,” said Vally during his live interview on Tuesday.
“That error had no impact on the outcome. I simply mistook the view that Mr Hewu had provided a confirmatory [affidavit].
Despite his apology, Vally told the Deputy Chief Justice that he still believed that mistake “was not a significant error”.
He read out a portion of the judgment which, he said, justified his minimalist view of the error: “Mr [Solly] Tshitangano [former Eskom procurement head] and Mr Hewu have both provided sworn testimonies in the form of confirmatory affidavits.
“That is the only error they have identified,” Vally said.
In its article last year, City Press revealed that not only did Vally erroneously state that Hewu had submitted a confirmatory affidavit, but he also relied on it and berated Econ Oil based on its contents.
The statement in question – which is the subject of the misconduct complaint to the JSC – is contained in paragraph five of Vally’s June 29 2021 ruling:
“Mr Tshitangano and Hewu have both provided sworn testimony – in the form of confirmatory affidavits – to this effect, which is not refuted but instead is only met with bare denial by Econ…”
Vally’s interview comes amid Chief Justice Zondo’s appointment of Justice Bess Nkabinde to head the investigation into Econ Oil’s misconduct complaint against the high court judge.
Nkabinde was appointed in August to head the inquiry that would determine the sanction against Vally should he be found guilty of misconduct.
Vally told the commissioners at the JSC interviews that he had made submissions concerning the Econ Oil misconduct complaint against him.
Econ Oil director and owner Nothemba Mlonzi said she had requested an extension to make her submissions to Nkabinde and that she would do so by Friday.
When asked whether she would pursue her court challenge against Eskom on the fuel oil contract, Mlonzi said: “My primary focus is this submission. Everything else I will look at, at the appropriate time and take legal counsel on appropriate action if any needs to be considered.”
Vally previously insisted to the JSC that Hewu did submit a confirmatory affidavit. His comments were made during a live interview in October last year for a seat on the Constitutional Court.
The Gauteng High Court judge did not make the cut for the seat on the SCA bench.
Instead, the JSC recommended judges Glenn Goosen, Daisy Molefe, Pieter Meyer, Sharise Weiner and Keaogile Matojane.