JUDGE NKOSI WANTS KING TO REVOKE SUSPENSION

MBABANE – Judge Sipho Nkosi has reached out to the King’s Advisory Council (Liqoqo) to advise His Majesty about alleged breaches of the Constitution by the chief justice and to revoke his suspension.

Judge Nkosi wrote a letter to Liqoqo and stated that he was requesting ‘you as the rightful libandla to kindly and urgently intervene by advising the Ingwenyama of emaSwati about the blatant breaches of the Constitution by the chief justice thus revoking the suspension of August 13, 2021’. He served the Judicial Service Commission (JSC) with the 13-page letter yesterday at the Royal Villas where his impeachment was conducted in camera. The JSC is overseeing the impeachment.

This was after his arrival at the Royal Villas, at about 11:30am, where the impeachment was conducted.  Soon after his arrival in the company of his attorney, Linda Dlamini of Linda Dlamini and Associates, and serving the JSC with the letter, Judge Nkosi left together with Dlamini for Lozitha to serve Liqoqo with the letter.

Allegations

In the letter, Judge Nkosi made damning allegations, particularly against Chief Justice Bheki Maphalala and outlined seven transgressions which he alleged to have been committed by the latter. He alleged that the chief justice committed serious transgressions in the manner and method by which he administered courts in the country. “These I have personally observed,” he said. These allegations are contained in the letter that Judge Nkosi served the JSC and Liqoqo with yesterday and have not yet been proven.

Judge Nkosi also alleged that during his first two years as a judge, he was subjected to ill-treatment in that he was not given the necessary tools and resources to carry out his duties. He said on numerous occasions, he implored the chief justice, registrar of the High Court and secretary of the JSC to give him resources to work. “However, the chief justice continued with literally oppressive actions to demean my status and making it impossible for me to carry on working as a judge. He deliberately impeded my performance,” reads the letter.

According to Judge Nkosi, the CJ allegedly on various occasions, literally subjugated the rule of law and breached fundamental provisions of the Constitution by deliberately interfering in court matters which he was seized with. This, according to the judge, undermined the sanctity of the High Court and independence of the Judiciary.

In fact, Judge Nkosi said the first derogation allegedly by Maphalala, who is also the chairperson of the JSC, emanated from Section 158 (3) of the  Constitution, which provides that where the King, acting on the advice of an ad hoc committee in the case of the chief justice, and on the advice of the chief justice in the case of any justice of a superior court, considers that the question of removing from office the chief justice or a justice on any ground stated in Sub-section (2) ought to be investigated, the King shall refer the matter to the Judicial Service Commission for investigation. Sub-section 2 states that a justice of a superior court shall not be removed from office except for stated serious misbehaviour or inability to perform the functions of office arising from infirmity of body or mind.

Judge Nkosi stated that the chief justice must advise the King of any complaints he had against a judge and His Majesty would then direct the JSC to investigate such complaints. This, according to the judge, did not happen in his case. He said he was not at any point advised by the JSC that a directive had been issued by the King empowering the former to investigate any matters concerning his behaviour. “The essence of the investigation by the commission is to establish the facts from both the chief justice and from me. This would then ensure that whatever recommendation is given to His Majesty the King by the commission will incorporate both sides of the matter,” he stated in the letter.

Judge Nkosi mentioned that the JSC would have to advise the King on what he had to say in his defence. He argued that the alleged breach of Section 158 (3) was fundamental to the process of impeachment. “My complaint is in twofold: Prior to the issuance of the Government Gazette suspending me from my duties I had absolutely no clue that there was an investigation or that the chief justice had actually laid a complaint against me resulting in the current process. I have no knowledge what reasons were given by the chief justice or for that matter the commission that warranted the Ingwenyama suspending me in terms of Section 158(6).”

He pointed out that it was imperative that he should have been made aware of any investigation in order to be given an opportunity to outline his defence for any alleged misbehaviour. Judge Nkosi said as the matter stood, he was not aware as to what was alleged to the Ingwenyama to warrant his suspension. “It is the very essence of civilised society that the precepts of justice and fairness that a person accused of misbehaviour at the workplace must during the investigation be given a chance to state his side. Sidelining me from the investigation was unjust, unfair and unconstitutional,” he continued.

There had been instances, according to Judge Nkosi, where provisions of the Constitution had allegedly been utilised to unfairly sanction citizens without them even knowing that matters had gone so far as to be reported to the King. He said this kind of action, in light of the Constitution, could not be allowed because it made it easy for people to utilise the authority of the King for their own purposes.

Charges

Judge Nkosi also accused the chief justice of deliberately withholding the charges from the date of suspension –being August 13, 2021-until barely two weeks before the expiry of the period of the inquiry. He said that kind of conduct was utilised by corrupt persons in order to force one party into submission. He alleged that he was not given time to prepare. He said he was in fact given 72 hours within which to answer on the allegations levelled against him. He said he hoped the Liqoqo, in its wisdom, would interrogate thoroughly the issues he complained about. He said the JSC should be transparent when dealing with judicial officers.

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