By Synd Kalimbuka
The Office of the Attorney General has applied to the High Court seeking an order to bar private practice lawyer Kalekeni Kaphale from representing TotalEnergies in a high-stakes breach of contract case, citing a conflict of interest.
The case involves Prima Fuels Ltd and the Malawi Government, who are claiming K824 billion (approximately $480 million) in damages for alleged breach of contract.
In a sworn statement seen by this publication, Attorney General Frank Mbeta says he has established that in 2020, when Kaphale served as Attorney General, his office issued a letter to lawyers representing Prima Fuels Ltd regarding the same matter. The correspondence is said to have contained information of evidential significance.
“It is obvious, therefore, that Dr Kalekeni Kaphale SC was privy to information of evidential importance in respect of this matter at the time he was the Attorney General of the Republic of Malawi,” reads part of the sworn statement.
The statement further argues that Kaphale’s involvement contravenes Chapter 7(3) of the Malawi Law Society Code of Ethics, which bars legal practitioners from representing a different party in the same matter where they previously acted for another party.
“Such being the case, it is against Chapter 7(3) of the Malawi Law Society Code of Ethics for Counsel who once acted for one party to act for another party in relation to the same claim and in this matter, the same Cause Number 259 of 2019,” the statement adds.
The dispute centres on fuel rebates that TotalEnergies was contractually obliged to remit to the government under an agreement signed in 2001. The company is alleged to have stopped honouring the payments in 2006, triggering the long-running legal battle now before the High Court.
