WeekendAnalysis Law Society takes on CJ/JSC
BAll rise! The Court of Public Opinion is back in session! The Honourable Judge Lady Justice presiding. Please be seated.
Ladies and gentlemen, I hope you are all good today. Calling the case of the people of the Kingdom of Eswatini versus Chief Justice (CJ) Bheki Maphalala and the Judicial Service Commission (JSC). Last week we had to postpone after the Public Defender came to my chamber at the last minute to say he had taken ill. Has he recovered?
I believe all parties are ready.
Your Honour, I am as fit as a fiddle. I would really like to publicly appreciate your indulgence last week, which is the reason I can say, on behalf of the people, we are more than ready to commence today.
Good. We lost valuable ground last week. Is the defence also ready?
We are ready for the defence, Your Honour.
Perfect. We are still listening to a submission from the Public Defender and that’s where we will take it from. The floor is all yours. ears. court?
AILIFF: Judge: Public Defender: Judge: Defence Counsel: Judge:
As the Court pleases. Your Honour, a lot has happened since our last time here in this court. What has been happening in the past week further cements our arguments and position taken against the Honourable Chief Justice and the Judicial Service Commission. But before we chew on that piece of meat, we had indicated previously that we would be joined by the Law Society of Eswatini as a friend of the court.
Public Judge: Judge: Defender:
If it pleases the court, may our colleagues in the Law Society be allowed to address this Court Your Honour?
The Law Society has this court’s
Your Honour, we appreciate the opportunity given to us to address this honourable court and we believe what we have to say is relevant to the matter that this court is seized with, and we hold the view that what we have to say will assist this court in reaching its decision on the orders that the Public Defender, on behalf of emaSwati, seeks to be granted.
Just how do you seek to assist this
Law Society:
Your Honour, as a council of lawyers, we know and have all the proof to show this court as well as the entire nation that the judiciary is already in a crisis. It pains us Your Honour to see that some of our members are accepting appointments that we consider to be controversial therefore, should have been rejected. No wonder
Law Society: ADRESS Chief Justice Bheki Maphalala.
the Chief Justice doesn’t give us face! We still wonder how our own former president Mr. Zweli Jele accepted being appointed Chairperson of the Disciplinary Tribunal. Firstly, Your Honour, Jele has been the legal representative of the chief justice in the latter’s personal and official capacities. He has also been the legal representative of the JSC on many instances. Further, he has been the JSC’s appointed prosecutor during impeachment processes of certain judges. Off head, he has been the prosecutor during the impeachment of former Chief Justice Michael Ramodibedi, former High Court judges Mpendulo Simelane and Sipho Nkosi. So, the relationship between Jele, the CJ and JSC is not in dispute. We were left dumbstruck Your Honour, when the CJ announced recently that he was appointing Mr. Jele into the position of Chairperson of the Disciplinary Tribunal - a judicial body established to deal with matters pertaining to the conduct of litigants in accordance with the rules and regulations and such other matters as set out in the Constitution. In short, this body deals with matters that have to do with the conduct of lawyers.
What does this appointment say to the reasonable person? Does the CJ consider Mr, Jele to be the Holy Grail of this country’s legal practitioners? Mr. Jele represents the CJ; represents the JSC; prosecutes judges; and will now discipline lawyers. We consider this to be absurd.
Your Honour, surely the Court cannot allow the use of such a word. My learned colleague should just withdraw it.
Come on Mr. Jele, are you that petty now? ‘Absurd’ is another word for ‘strange’. I’ll allow it in my court.
As the court pleases. You Honour, we therefore support the arguments previously canvassed by the Public
Defence Judge: APPOINTMENT Counsel: Law Society:
Defender in this court on the relationship between the CJ and Mr. Jele. Mr. Jele’s appointment is not the only one we are not comfortable with as a council. We also feel let down by our former Secretary Mr. Sabelo Masuku for having accepted an appointment as Acting Judge of the Supreme Court when he is also Commissioner of the Human Rights and Public Administration/ Integrity Commission. As a person who is responsible for issues of integrity when it comes to public officers, Masuku should not be beyond reproach and should not allow any iota of doubt to be cast on his integrity. We say this because we now see Mr. Masuku being appointed to preside over the matter between Galp Eswatini and Big Tree that was previously reported to the Commission. We are also aware that last week Mr. Masuku refused to recuse himself from this matter. Even though there is no legislation that prevents him being appointed as Acting Judge, we still believe that Mr. Masuku will absolve himself by doing the right thing once his period as an acting Judge comes to an end.
Let me be blunt here Your Honour; we expect Mr. Masuku to turn down any offer of an extension to his appointment.
Wouldn’t that be defying the appointing authority?
Certainly not, Your Honour. Acting Judges are appointed by the CJ and not the King, so he can definitely turn down the chief justice.
Okay, I get you.
Your Honour, let me move to this other argument. We currently have the Judiciary and the Legislature fighting it out in a matter that is being ventilated at the High Court and this case is getting messy every day. This case is pitting two arms of government against each other and has seen the Attorney General in the midst of the argument as he represents the Legislature against the Judiciary and the Chief Justice. By default, Your Honour, this has severed the constitutionally enshrined function of being the legal representative in court of institutions such as the JSC and the CJ in his official capacity. It is public knowledge that the CJ and JSC have not used the services of the AG in court matters but have preferred to engage Mr. Jele; the present application, therefore, appears to be a public display of a ‘no love lost’ relationship between the AG’s Office and the CJ together with the JSC. An adversarial relationship between the AG’s Office and the CJ/JSC is a crisis on its own. Your Honour, if one looks at the papers that have been filed in court thus far, the image of our judiciary is being torn to shreds. There are serious allegations that have been made against both the CJ and the JSC. Your Honour, the Public Defender has previously addressed this court on the matter between these two arms of government and how Judge Ticheme Dlamini had issued an order that the Honourable Principal Judge - this being Justice Qinisile
Judge: Law Society: Judge: Law Society: EXTENSION
Mabuza - by virtue of being the most senior Justice of the High Court, be the one to empanel the full bench that is to hear and decide this matter. There is now a serious allegation made by the Legislature that the CJ had gone ahead and appointed the members of the full bench, hence the allegation that he has defied Judge Ticheme’s order. Even if the court finds this allegation to be false, the mere fact that the CJ and JSC have been associated with such conduct is enough to cause the public to lose trust in the judiciary.
Try to wrap up your submissions counsel, time is not of the essence.
Thank you Your Honour. As the law Society, we feel greatly undermined by the CJ. We are key stakeholders in the judiciary but he has either failed or refused to give us an audience despite the many attempts we have been making to meet with him. There are issues that we need to discuss with him concerning the administration of justice, which we feel are the ones responsible for crippling our judiciary to the point of reaching a crisis. The CJ treats us like his enemies whereas, we are supposed to be his partners for the effective administration of justice in this country.
Judge: Law Society:
Even junior staffers at the courts now do not respect us. The rule of law in this country has been greatly compromised and we need to speak to the CJ about this fundamental issue. We need to address him about the continued unconstitutional appointment of judges; the non-existing vetting of judicial appointments; perceived interference by the CJ in the enrolment and allocation of matters; flouting of the Constitution in the establishments of the commercial courts; delayed delivery of judgments and many more other issues. You Honour, may I reiterate that what is happening in the judiciary is really painful and we are in a crisis, which if left unattended will halt the wheels of justice. I thank you Your Honour.
Thank you counsel. Your submissions have certainly been of assistance. Looking at the time, I would suggest that we abandon until next week.
You Honour, we have
Judge: Defence Counsel:
a request.
What’s your request Mr. Jele.
Upon resumption next week, we request, Your Honour, an opportunity to address this court. Since this matter began, we have been listening to the other parties and we feel a lot of issues have been brought to this court’s attention without our side being heard.
Even though this is unprocedural but I will allow you Mr. Jele. Does the Public Defender have issue with this request?
Your Honour, we are more than interested to hear what our learned friend has to say. So, we will be all ears too.
Judge: Defence Counsel: Judge: Public Defender:
That’s settled then. This matter is adjourned until June 11, 2022.
All Rise! (Judge exists)