New twist in Master’s Office Parly probe case
MBABANE – Talk about a sudden turn of events!
Chief Justice (CJ) Bheki Maphalala and the Judicial Service Commission (JSC) have abandoned the legal battle with the clerk to Parliament over the establishment of a Parliament Select Committee to investigate alleged gross maladministration, abuse of power and embezzlement of estate monies at the Office of the Master of the High Court.
In this matter, the CJ was previously granted leave to appeal a judgment directing the High Court principal judge to empanel a bench to hear this matter wherein he was also a party. The im pugned judgment was issued by Judge Ticheme Dlamini, who felt that it would not be prudent for the CJ to empanel the bench as he was conflicted.
Appeal
The appeal was due to be heard on Thursday but the appellants¶ (CJ and JSC) Lawyer, Derrick Jele, stood up and applied that it should be struck off the roll. Jele did not disclose in court the rationale behind his clients¶ decision to have the appeal struck off the roll.
The appellants¶ application was not opposed by the respondents (clerk to Parliament, Speaker and AG) who were represented by Assistant Attorney Gen eral Mndeni Vilakati.
The Supreme Court bench which consisted of Justices, Sabelo Matsebula, Judith Currie and Magriet Van Der Walt, then recorded that the matter was being struck off the roll.
The court did not make any order of costs.
In the initial matter, the CJ had argued that there was no substance in the com plaint that he was conflicted to empanel a bench for the matter.
The resolution to carry out the probe was taken in Parliament. The CJ and the JSC instituted proceedings to stop the select committee from investigating the Office of the Master of the High Court for alleged irregularities.
The main matter was constitutional and there was a need for a constitutional court to be empanelled to hear it.
The attorney general was of the view that since the CJ was a litigant in the matter, another judge should empanel the full bench as he (CJ) was conflicted. It was then that an application was moved that another person, instead of the office of the CJ, should empanel the full bench.
The High Court referred the matter to the Principal Judge of the High Court, 4inisile Mabuza, to empanel the full bench. Discontent with the order, the CJ and JSC filed an application for leave to appeal, seeking to challenge the jurisdic tion of the High Court to grant such an order in light of the duties and powers of the office of the CJ as set out in the Constitution.
The application for leave to appeal was heard and determined by Supreme Court Judge Jacobus Annandale. Zweli
Jele of 5obinson Bertram, who initially represented the CJ and the JSC had ar gued that there were prospects that the Supreme Court would materially alter the order of the High Court.
He said the matter of the probe was of great public importance.
He noted that the High Court men tioned that the dispute between the applicants and the respondents (Clerk to Parliament, Speaker and AG) concerned the powers and/or functions of the Judi ciary and the Legislature.
Constitution
The matter concerned the functions of the office of the CJ as set out in Sections 139(5) and 142 of the Constitution as the head of the Judiciary.
Jele said the respondents sought to argue that the applicants waived their rights to challenge the lack of jurisdic tion to grant the impugned order or that it consented to the order and, therefore, cannot be heard to say that the court had no jurisdiction to grant the order.
Meanwhile, on January 16, 2017, the CJ announced the establishment of a Judicial Commission of Inquiry to investigate allegations of impropriety, maladministration, abuse of power and incidental matters at the Office of the Master.
When the commission was established a number of people raised concerns, say ing there were pending cases touching on the same subject and wondered what would happen to it. In one instance the attorney general caused to be issued a correspondence to the Secretary of the commission, Siphiwo Nyoni, wherein he asked her to advise his office on the status of the matter.
This resulted in a delay in the issuance of a gazette establishing the commission.
Administration
The CJ established the Judicial Com mission of Inquiry in terms of Section 139 (5) of the Constitution (5), which provides that, subject to the provisions of this Constitution, the chief justice is the head of the Judiciary and is responsible for the administration and supervision of the Judiciary.
The commission¶s Chairperson is Judge Majahenkhaba Dlamini. The other commissioners are Judge President Sifi so Nsibande, Judge Mzwandile Fakudze, Judge Maxine Langwenya and Judge Lorraine Hlophe.
So far there are over 145 cases pending before the commission. It has also con sidered written submissions, mainly on Thursdays and Fridays.
After the commission was established by Maphalala, the Law Society of Es watini (LSE) was quick to act. It served the CJ with 22 complaints about the establishment of the commission.
Their complaint, among others, was that it was not the prerogative of the CJ to establish the Commission of Inquiry but it was the preserve of the minister of Justice and Constitutional Affairs as per the Commissions of Inquiry Act of 1963.