Recuse yourself from CJ case, judge requested
MBABANE - Judge Nkosinathi Maseko has been requested to recuse himself from a matter involving CJ Bheki Maphalala, least he finds himself in the same position as former judge Mpendulo Simelane.
This is in the matter where Inkosatana Gelane Simelane filed papers in court, accusing Prince Velebantfu of Mbelebeleni of continuing to unlawfully allocate land at Lawuba. The chief justice (CJ) deposed to an affidavit in the matter in support of the inkhosatana.
Former judge Mpendulo was called upon to adjudicate over a matter involving his former boss, who happened to be the CJ at that time (the late Michael Ramodibedi) and he (Mpendulo) gave judgment in favour of the then CJ. The Judicial Service Commission (JSC) headed by the current CJ, preferred charges of misconduct against Mpendulo, and his appointment was subsequently terminated for refusing to recuse himself from hearing the matter involving his boss. In his application for the recusal of Judge Maseko, Prince Velebantfu submitted that if the JSC could recommend the termination of the appointment of a sitting judge for refusal to recuse himself and later dismiss him from the service, how much more should other judges be careful of the same trap in future cases.
“It is also important to note that in the fullness of time, the former CJ was also removed from his position for abuse of office, by assigning a judge under his direct supervision to hear and determine his own personal case. This was held by the JSC headed by the current CJ, which found that it was offensive to the Prevention of Corruption Act,” submitted the prince. These are allegations whose veracity is still to be tested in court.
“This case on all fours with the case that led to the dismissal of the former CJ and that of Justice Mpendulo Simelane and if the concept of judicial precedent is anything to go by, the learned Judge
Maseko ought to be scared and recuse himself from this case,” contended the applicant. He also highlighted that the High Court had another occasion to consider recusal of the entire High Court bench in a matter that pertained the president of the Industrial Court. According to the applicant, the JSC was forced to secure a foreign judge to hear the matter because the relationship with the judge (judge president) and their lordships was so close that justice could not be manifestly and undoubtedly be seen to be done.
Prince Velebantfu contended that for the aforegoing reasons, their confidence in Judge Maseko presiding over the matter was lowered. “We honestly feel that he (Judge Maseko) will decide in favour of the applicant (Inkhosatana Gelane) in the main matter, not because she deserves victory and will not be open to persuasion by my attorneys because he naturally owes the CJ such a favour to help him acquire land under my dominion to be annexed onto his Embangweni Umphakatsi,” submitted Prince Velebantfu. The prince said he did not doubt the wisdom and wealth of civil law jurisprudence deposited unto the bosom of the learned judge and had he not been compromised by circumstances beyond his control, he would have surely produced an instructive judgment to assist litigants in similar cases as he had relentlessly done in the past.
“However, I have real apprehension that the learned judge has adopted a stance in favour of the applicant and the CJ will not be open to persuasion by any other submission not supportive of the CJ’s position,” argued the prince.
He then humbly asked Judge Maseko to find it in his heart to recuse himself as his (prince) subjects believed there was a real apprehension of actual bias in him sitting and continuing with hearing the main matter. The chief said he was not suggesting that they wanted to emerge as winners in the main matter, even if justice on the merits did not warrant their victory, however, they wanted justice rooted on confidence to be the ultimate winner whether they lost on the merits or not.
The matter is still pending in court and appearing for the prince is Khumbulani Msibi of Dlamini Kunene Attorneys, while the respondent are represented by Principal Crown Counsel Bheki Tsabedze from the chamber of the attorney general.