By Wezzie Gausi:
The High Court Commercial Division in Lilongwe is expected to deliver its ruling today on an application seeking to bar former Attorney General (AG) Kalekeni Kaphale from representing TotalEnergies in the ongoing Prima Fuels dispute.
Judge Trouble Kalua will decide whether Kaphale and his law firm, Kalekeni Kaphale Lawyers, should cease acting for TotalEnergies Marketing Malawi Limited and TotalEnergies SE in the case involving Prima Fuels Limited.
Current AG Frank Mbeta filed the application, arguing that Kaphale has a conflict of interest because he served as AG when the dispute between Prima Fuels and TotalEnergies began.
Mbeta told the court that Kaphale’s previous position could have given him access to confidential government information related to the matter.
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Kaphale, however, denies the allegation and has asked the court to dismiss the application.
“To the best of my recollection, I never handled the first claimant’s file or any correspondence with the office of the Attorney General. I never communicated with their lawyer or with them at all,” Kaphale states in his sworn statement.
He also argues that the AG’s office handles a large volume of work, meaning many matters are delegated to senior officers.
But Principal Secretary (Legal) in the Office of the President and Cabinet, Chizaso Eric Nyirongo, has filed a sworn statement challenging Kaphale’s position.
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Nyirongo says a letter at the centre of the dispute was written after he consulted Kaphale while he was AG.
Nyirongo adds that the communication was written on the AG’s letterhead and signed on behalf of the office.
“It is more probable that counsel might have forgotten, considering that more than six years have lapsed since I wrote that letter. But a document speaks for itself,” he says.
The dispute centres on a 2001 fuel supply contract under which TotalEnergies was reportedly required to pay rebates to the government and Prima Fuels.
It is alleged that TotalEnergies stopped making these payments in 2006, leading Prima Fuels and the government to claim approximately K824 billion in unpaid rebates and losses.
