The High Court of Malawi Commercial Division has stopped former Attorney General (AG) Kalekeni Kaphale and his firm from representing TotalEnergies Marketing Malawi Limited in a K824 billion claim case over conflict of interest.
Delivering judgement in Lilongwe yesterday following an application by AG Frank Mbeta, Judge Trouble Kalua noted that Kaphale’s involvement in the matter created a conflict of interest because he was serving as AG when the dispute involving Prima Fuels Limited and Malawi Government, on one hand and Total Energies on the other, was in progress.
The judge said even if Kaphale did not personally receive confidential information, his position as AG meant that he was involved in a process where the government was supporting Prima Fuels in the claim for K824 billion ($480 million) claim for breach of contract.
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Kalua also said that Kaphale’s decision to represent TotalEnergies Malawi in the same matter against Prima Fuels undermines the principle that justice must not only be done, but must also be seen to be done.
Reads in part the ruling made available to The Nation: “Consequently, we do order that messrs Kalekeni Kaphale Lawyers cease acting for the first defendant [TotalEnergies] in these proceedings forthwith. We note that the first defendant has several legal practitioners acting on their behalf herein.
“However, should the first defendant still desire to replace messrs Kalekeni Kaphale Lawyers, they should do so within the next 30 days from the date of this order.”
In his application, Mbeta argued that while serving as AG, Kaphale had access to information relating to the dispute between Prima Fuels and TotalEnergies Malawi.
He said that by nature of his position, Kaphale was privy to discussions and information relating to the case, as such, his decision to represent TotalEnergies created a conflict of interest scenario under the Malawi Law Society Code of Ethics.
Mbeta said a letter dated January 31 2020, written on behalf of the AG’s office, shared information of evidential importance with lawyers representing Prima Fuels during arbitration proceedings. He further said in the letter authored by chief legislative counsel Chizaso Nyirongo, government had preliminary information about the contract between the parties and pledged support to help Prima Fuels in pursuing the matter.
But in his response, Kaphale argued that he did not personally handle the matter during his tenure as AG and had delegated work to officers in his department.
He further said he did not recall discussing the Prima Fuels case with Nyirongo and had never possessed confidential information related to the dispute that could prejudice any party.
The case relates to a rebate on fuels that TotalEnergies was obliged to pay the government in accordance with a contract signed in 2001, but allegedly stopped honouring the payment in 2006.
