‘Law of the jungle’ in Sipho Shongwe’s incarceration
MBABANE – “Where court orders are flouted with impunity, this leads to anarchy and the law of the jungle reigns supreme...” These words are part of the judgment pronounced by the full bench of the High Court in the case of Siboniso Clement Dlamini and the Chief Justice of Eswatini and others.
High Court Judge Nkosinathi Maseko referred to these words as part of the citation when dealing with the matter of murder accused businessman Sipho Shongwe and the Commissioner General of His Majesty’s Correctional Services, Phindile Dlamini, wherein the latter defied a court order that Shongwe be moved from the Matsapha Central Prison to the Manzini Correctional Facility.
This is despite the commissioner general’s legal representative, Assistant Attorney General Mbuso Simelane, having admitted in court that the correctional services boss was in defiance of the court order.
On February 15, 2022, Shongwe’s legal team wrote to Simelane, alerting him that the defiance of the court order was still continuing.
The letter reads partly: “We note with dismay that Mr. Shongwe has not been returned to the Manzini Correctional Facility as per the order issued by the said Justice on February 14, 2022. We further place it on record that after the order was granted in your presence, the Registrar of the High Court served the same to yourselves and all relevant parties. We, therefore, cannot accept nor understand the conduct adopted by your client which is a direct violation of the rule of law and is undermining the court order.”
The lawyers said they trusted that Simelane would advise the commissioner general to immediately comply with the order and expected Shongwe to be returned to Manzini Correctional Facility.
To this day the correctional services continues to defy the order and Shongwe is still incarcerated at the Matsapha Central Prison, despite him having complained of being subjected to ill-treatment there.
Judge Maseko first issued the order on June 16, 2021, directing the correctional services commissioner general to relocate Shongwe to another facility because of the complaints that the businessman submitted before court.
The judge’s order was partly complied with for a few weeks until July 1, 2021 when Shongwe was, at around 5am, taken back to the Matsapha Central Prison without any court order variating or rescinding the one issued by Judge Maseko.
This happened while there was a pending urgent application moved by the commissioner general on June 18, 2021 seeking a stay of the order of June 16, 2021 as well as a rescission of that order.
The application by the commissioner general was opposed by Shongwe who, after he was taken back to Matsapha Central Prison while these proceedings were pending, mainly advanced the doctrine of clean hands.
COMMISSIONER GENERAL’S DEFIANCE
Shongwe’s attorney Lucky Howe argued that the commissioner general had come to court with dirty hands by trying to rescind or stay the order of June 16, 2021, whereas the correctional services was continually defying the same order and therefore were in contempt.
Judge Maseko agreed with Howe that the commissioner general must purge the contempt first before approaching the court for redress.
“It is being disrespectful for the commissioner general to continually disobey an order of this court and at the same time apply for its rescission,” the judge said.
He said the defiance of the order was carried out by the commissioner general on the very same day the June 16, 2021 order was issued.
“The subsequent occasions of such defiance are only indicative of the complete disregard of the order of this court by a public office whose duty is to uphold the law,” the judge said.
The correct approach by the commissioner general, in the judge’s view, was that she should purge the contempt and then approach the court with clean hands because even the Assistant Attorney General, Mbuso Simelane, who represented the correctional services, conceded that the commissioner general was in defiance of the court order.
The judge said he was of the considered view that the continual defiance of the court order by the commissioner general impeded the course of justice.
Despite the problems that Shongwe is having at the Correctional Services, the judge said he could not ignore his attitude of being prepared to have his trial continue.
The judge then referred to what the full bench of the High Court said: “One of the rationale for the doctrine of unclean hands is to compel parties to comply with court orders. Where court orders are flouted with impunity, this leads to anarchy and the law of the jungle reigns supreme... Public order or policy dictates, therefore, that where a litigant has flagrantly refused to follow orders of the court or tribunals this doctrine stands to be invoked, it is a component of the rule of law.
“Its perception is that you cannot hope to get assistance from the very machinery you disregard. On its application, it shuts the doors of justice completely until the concerned party complies with the orders or to put it directly, purges his contemptuous act.
“Unfortunately, once this doctrine is established by the party raising it, the court cannot even try to dust the cob web to see beyond it with a view of ascertaining whether the party who has to answer to the doctrine has prospect of success in the merits of the case. It is a preliminary point that must be dealt with. Once upheld, the whole proceedings collapse against the party which the doctrine is raised.”
PROTECTING ACCUSED’S RIGHTS
Judge Maseko said he was very cautious of the fact that the application of the doctrine of clean hands was always at the discretion of the court dealing with the matter.
In order for a court to exercise its discretion in these matters, he said, the particular circumstances of each case determined whether or not the discretion was exercised in favour of the contemptuous party.
He said he could not exercise his discretion of favour of the commissioner general who had from day one disobeyed the order of the court.
He said he could not exercise a discretion in favour of the commissioner general who chose when and where to be defiant of the order of the court.
“I will repeat for the sake of repeating myself that I am in the middle of a sensitive criminal murder trial, where the rights of the accused must be protected at all costs in order to safeguard his
rights in terms of Section 21 of the Constitution,” the judge stated.
In his judgment delivered on February 14, 2022, Judge Maseko upheld the point on the doctrine of clean hands as raised by Shongwe’s legal team and dismissed the application by the commissioner general to have the order of June 16, 2021 stayed as well as rescinded.
The commissioner general has since filed a notice of appeal at the Supreme Court and Shongwe has entered his own notice to oppose the application.
Shongwe argues that the commissioner general has approached the Supreme Court with dirty hands, in that she has maintained the violation of the court order issued by Judge Maseko directing that the businessman be removed from the Matsapha Central Prison with immediate effect.
“The violation of the said court order continues and the appellant has shown no remorse nor has he complied with the order and then proceeded to apply for a variation of the order. The appellant has no regard for the rule of law and cannot be granted any redress by the court,” the lawyers have submitted.
The lawyers consider the commissioner general’s appeal to be an abuse of the court provision and State facilities due to her ‘deliberate conduct’, hence they are seeking the court to order that she should pay the costs of the application from her own pockets at the client’s scale.
The defiance has proved to be costly for the taxpayer because Judge Maseko, in the February 14, 2022 judgment, ordered that the commissioner general should pay the costs of the application on the ordinary scale and that such costs were inclusive of the certified costs of Shongwe’s three legal representatives in Advocate L Hordes, Lucky Howe and Ben J. Simelane.
A communication from Shongwe’s lawyers to the Assistant Attorney General shows that for the three days, Advocate Hordes has to be paid E138 000 plus E3 550 for two days’ accommodation.
With regard to Howe and Simelane, the lawyers said they were willing to accept a tender amount that was reasonable under the circumstances.