Lawyers win case against Parliament
MBABANE – The High Court has delivered a landmark judgment clarifying the separation of powers between Parliament and the Judiciary.
The decision by Parliament to set up a committee to investigate lawyers for alleged misuse of members of the public’s moneys and corruption has been set aside with costs.
A full bench of the High Court yesterday unanimously directed that the Parliament Select Committee set up to investigate lawyers and invite members of the public to forward complaints against lawyers, should stop.
The bench comprised of Judges Mbutfo Mamba, Nkululeko Hlophe and Esther Ota.
The judgment was delivered by Judge Hlophe.
He said the legal profession, of which lawyers are members of the Law Society of Swaziland, was an integral part and governed by the Legal Practitioners Act of 1964.
He said Parliament set up a Select Committee to investigate allegations of unprofessional conduct of lawyers suspected of mismanaging Trust Accounts and enriching themselves through fraudulent means.
He said the bench agreed with Advocate Barry Skinner for the lawyers, that Parliament did not have powers to exercise judicial powers, because such was preserved for the Judiciary.
The court also said Parliament’s contention that Speaker Prince Guduza, in his capacity as head of the House of Assembly and MP Nonhlanhla Dlamini, the committee’s Chairperson were entitled to carry out the investigations, overlooked the doctrine of the separation of powers.
Judge Hlophe said the doctrine ensured that the Legislature did not perform duties of either the Judiciary or the Executive or vice versa.
"In particular (we agree) that the exercise by the select committee in so far as it purports to investigate legal practitioners or lawyers for acts of corruption or mismanagement of trust accounts takes the matter nowhere in as much as it will be empowered to adjudicate whether a particular attorney accused of either fraud, misappropriation of client’s money or corruption as guilty or not, in the case of that particular attorney denying such allegation," he said.
He said Parliament cannot be allowed to conduct an exercise in futility at the expense of lawyers if it can neither adjudicate a dispute that arises nor an offender if identified.
"That is why it would be appropriate for Parliament or any member thereof, if it or he is aware of any unlawful conduct by members of the applicant, (Law Society of Swaziland) or any one for that matter to report such unbecoming conduct to the lawfully established structures to deal with such conduct; it only reserving to itself the power to amend the legislation establishing such structure, if it is of the view same is dysfunctional in its current form," Judge Hlophe said.
The court further said Section 129 of the Constitution of Swaziland, from which Parliament relied in its case, did not entitle it to regulate the legal profession. It said such powers to regulate the legal profession, Parliament gave to the Law Society of Swaziland through a mechanism established in terms of the Legal Practitioners Act.
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