Govt plays King's immunity card

This was in response to Jozini Leasehold (Ltd) and Lubombo Development and Management (Ltd)’s application for an interdict against government’s interference in its business and efforts to stop it from operating.

Government filed an application to raise points of law against Jozini Big Six’s application, through the Attorney General’s office. It argued that in terms of Sections 11 and 228 (2) of the country’s constitution, the King, being the Executive head of government, was immune from legal suit, therefore the court should dismiss the company’s application. It argued that the High Court did not have jurisdiction to determine the application.

In its response, Jozini Leasehold argued that in terms of section 139 (2) of the constitution, the judiciary had jurisdiction in all civil and criminal matters relating to the constitution. It argued; therefore, that the applicability of the sections that immunise the King and Ingwenyama are to be determined by the High Court. Jozini Leasehold and Lubombo Development and Management are represented by Rodrigues and Associates in the matter.

Section 11 of the constitution stipulates that the King and Ingwenyama shall be immune from suit or legal process in any cause in respect of all things done or omitted to be done by him. It also states that the King and Ingwenyama shall be immune from being summoned to appear as a witness in any civil or criminal proceeding. Section 228 (2) of the constitution in the same vein, stipulates that the Ingwenyama has the same legal protection and immunity from legal suit or process as the King.

Jozini Leasehold and the Lubombo Development and Management argued that reliance on the above sections could not be used to oust the jurisdiction of the High Court over the matter.

The companies further argued that it could not have been the Legislature’s intention, when it enacted the King and Ingwenyama’s immunity clauses, to deny them access to justice as stipulated in the constitution.

It argued that the constitution provided that all people should be treated equally before the law, entitled to a fair hearing and administrative justice.

They also argued that the constitution prohibited against the derogation of the right to equality before the law; therefore, invoking the immunity clauses would create conflict.

The Jozini Big Six were granted a 99 year lease to manage the project situated in the southern part of Swaziland, for tourist attraction sites and game.

The Chief Justice, Michael Ramodibedi, in 2011 issued a practice directive barring the filing of applications against the King, citing the constitution which provides that the Head of State was immune from legal suit. The practice directive was met with opposition from lawyers who demanded its removal. The lawyers engaged in a four-month boycott in complaint thereof, among other complaints, but the directive was never removed despite that others were.

The applicants had applied that the points of law raised by government be dismissed with costs and government be ordered to file opposing affidavits. The matter is pending.

Comments

As a Swazi, I want Sections 11 and 228 (2) of the country’s constitution to change so that no-one is immune to a legal suit. Which Swazi (or group of Swazis) said the executive head of government be immune from legal suit? How does this differ from a 'dictator'?
Jun 7, 2012, 1:59 PM, Sizwe Zako (noemail)

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