Times Of Swaziland: LSS WANTS 2 ACTING JUDGES REMOVED

LSS WANTS 2 ACTING JUDGES REMOVED
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BY MBONGISENI NDZIMANDZE  on 01/03/2019 03:47:00


MBABANE - The Law Society of Swaziland (LSS) has filed an urgent application for
the removal of two acting judges of the Supreme Court.
These are former Deputy Attorney General Sabelo Matsebula and senior lawyer
Judith Currie.
LSS wants the court to declare that the appointment of the duo as acting judges
of the Supreme Court, was inconsistent with the provisions of the Constitution
of the country.
The LSS is further seeking an order interdicting Matsebula and Currie from
performing any functions as acting judges of the Supreme Court pending the final
determination of its application.
Respondents in the matter are the Judicial Service Commission (JSC), minister of
Justice and Constitutional Affairs and the attorney general.
appointed
LSS Secretary General, Thulani Maseko informed the court that Currie and
Matsebula did not qualify to be appointed acting judges of the Supreme Court.
They were appointed through Legal Notice No.145 dated August 7, 2018, issued by
His Majesty in terms of Section 153.
These are allegations contained in an affidavit whose veracity is still to be
tested in court and the respondents are to file their papers.
Maseko stated that the duo’s appointment was extended on October 16, 2018 by
His Majesty.
He submitted that the duo’s appointment as justices of the Supreme Court was
further extended with effect from February 8, 2019, supposedly by His Majesty.
“I point out that the applicant is not challenging the decision of His Majesty
but the advice given to him, which has led to an incorrect and constitutionally
invalid appointment,” Maseko submitted.
He contended that the Legal Notices appointing the two as acting judges were
incorrect, improper and unlawful.
Maseko informed the court that in terms of Section 153 of the Constitution, His
Majesty should appoint a judge of the superior court on the advice of the JSC. 
He highlighted that the term of office of the commission was determined in terms
of Section 159 of the Constitution, read together with Section 173.
consist
Section 159 stipulates that; “ There shall be an independent JSC, which shall
consist of the chief justice, two legal practitioners of not less than seven
years practice in good professional standing, to be appointed by the King;
chairman of the Civil Service Commission and two persons to be appointed by the
King.”
The section further provides that a member appointed should hold office for a
period not exceeding four years.
Maseko averred that the current office of the JSC was vacant as its term of
office expired on May 6, 2018.
“The Legal Notices issued thereafter by His Majesty were unlawful and
inconsistent with the provisions of Section 159 of the Constitution,” he
argued.
He submitted that the office of the JSC remained vacant and as such, no
appointment of any justices or any judicial officer could be made until such
time that the office of the commission had been completed constitutionally.
Maseko asserted that any appointment by the JSC was therefore null and void and
of no force and effect constitutionally.
contended
He contended that the appointments of Matsebula and Currie as acting judges of
the Supreme Court were made unconstitutionally and ought to be set aside.
He further contended that their appointments were not transparent.
According to Maseko, the regulations required the declaration of any vacant
position to be published
.
“LSS maintains that no vacancies were declared for the said positions, nor
were the appointments made transparent, and furthermore it was a direct
violation and contravention of the Constitution,” submitted Maseko.
He contended that the manner in which the duo was appointed did not meet any of
the criteria as provided for in law, and if it was done in terms of the process
provided for, it was not open and transparent.
Maseko alleged that the issue regarding the appointment of judicial officers
were discussed during a meeting between the executive of LSS and the chief
justice.
incumbent
He told the court that it was incumbent for the LSS to raise concerns where it
would appear that judicial appointments were not in accordance with the
Constitution.
“It is respectfully submitted that for a proper administration of justice, it
is fundamental to defend the Constitution,” said Maseko.
He averred that if the two acting judges were permitted to continue to sit and
determine matters, their decisions would be unlawful and unconstitutional.
He said the matter was urgent as the continued sitting of the two acting judges
violated the Constitution and was allegedly unlawful.
He claimed that any decision made by them (two acting judges of the Supreme
Court) was null and void, and would lead to chaos in the administration of
justice.  This, according to Maseko, would be to the detriment of litigants who
were being exposed to violation.