LAW SOCIETY DISCOURSE Spotlight on CJ, JSC
THE Weekend Analysis opinion pieces by Assistant Weekend Editor Welcome Dlamini published on consecutive Saturdays thrust the spotlight on the Chief Justice (CJ) Bheki Maphalala and the Judicial Service Commission (JSC) he chairs. The criticism of the CJ and the JSC in these opinions call for comment from the Law Society, which has dedicated this week’s discourse to dissecting these opinions. The highlights of the opinions deserve to be reproduced not just for the benefit of the readers who did not have the privilege of reading them, but for the fact that a substantial portion of the issues raised by these opinions resonate with the Law Society as key stakeholders in the administration of justice in the country. In fact, there has been intense debate within the Law Society about some of the issues raised by the opinions of the editor.
SATURDAY MAY 14, 2022 OPINION
The criticism of the Chief Justice and the JSC was first spotted by the Law Society in the Eswatini News edition of May 14, 2022 under the title ‘Public Trial: The Chief Justice and the JSC have a case to answer’. This title inevitably caught the attention of the Law Society about which freedom of expression takes a heightened importance as a result of its involvement in the administration of justice in the country.
The public character of the criticism finds expression in the introduction of the opinion piece which is presented in a satirical narrative. The introduction reads:
‘Bailiff: All rise! The Court of Public Opinion is now back in session! Judge Lady Justice presiding. Please be seated.
Judge: Good day ladies and gentlemen. Calling the case of the people of the Kingdom of Eswatini versus Chief Justice (CJ) Bheki Maphalala and Judicial Service Commission (JSC). Are both sides ready?
Public Defender: Ready for the people, Your Honour.’
The criticism commences with the appointment of judges before preferring to prioritise the relationship between the Chief Justice (in his professional and personal capacity) as well as the JSC on the one hand and Robinson Bertram on the other.
The newspaper editor complains about the Chief Justice and JSC’s engagement of a private law firm in which a Senior legal practitioner features prominently. He points out that this is not just unconstitutional but absurd.
Section 77(3)(a) of the Constitution is cited by the newspaper editor. This section stipulates that “the Attorney General shall be the principal legal advisor to government.” The Law Society draws the attention of the reader to other relevant provisions of the Constitution, in particular the following sections under Part VI of the Constitution:
S.77(5)Without prejudice to the general functions under Subsection (3), the functions of the Attorney General shall be to –
(c) represent the government in courts or in any legal proceedings to which government is a party;
S.77(6) The functions of the Attorney-General under Subsection (5)(a), (b)(c), (c) and (f) may be exercised by the Attorney General in person or by subordinate offices acting in accordance with the general or special instructions of the Attorney General.
As the public defender continues to punch holes in the relationship of the CJ and the private law firm in the satire, the newspaper editor stages an objection from the legal representative of the CJ and the JSC who contends that the submissions of the public defender are irrelevant. In response, the public defender states that; “Our submissions are in everyone’s interest, because it is taxpayer’s money that will foot the bill for the CJ and JSC’s legal expenses. The money that will be paid to Robinson Bertram is from the people, so we have the right to question why we have to pay them yet we are also paying salaries for the legal experts in the AG’s Office. The use of private attorneys by the CJ and JSC are an unnecessary expense, because the legal skills, experience, knowledge and resources required are available in the office of the AG. Employing an outside law firm may compromise not only the JSC but the very notion of the independence and impartiality of the Judiciary and the fair and equitable administration of justice.
This private firm may now be privy to matters that are confidential to government and the Judiciary and this will most likely create the impression that Robinson Bertram is favoured over other law firms, because the process through which this selection is done is not open, transparent or accountable.”
ATTORNEY GENERAL’S CONSENT TO ENGAGE A PRIVATE LAW FIRM
The newspaper editor then raises a critical point about the participation of the Attorney General in the engagement of the private law firm. This point is characterised in the satire in these terms:
Judge: What if the AG’s office is the one that has given the CJ and the JSC permission to engage a private law firm?
Public Defender: Then we will demand that Robinson Bertram submit to this court that letter from the AG’s office permitting the CJ and JSC to engage them.