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CJ MAKING HEADLINES FOR WRONG REASONS

13/06/2022 15:44:00 Editor

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It’s time to act Minister’’ screams yet another title of a newspaper article in reference to the Minister of Justice and Constitutional Affairs under whose executive authority the administration of justice in the country falls.

This was as recently as Friday the June 10, 2022 in the Times of Eswatini under the Comments & Analysis opinion by Managing Editor Martin Dlamini. Ironically, members of the Law Society convened on the same Friday to deliberate this pressing issue of what many now refer to as the maladministration of justice. The administration of justice in the country was the only item in the agenda of the Law Society’s meeting. This item also featured in yet another Law Society meeting at the end of April 2022, less than one and a half months ago. This reveals the pressing nature of the administration of justice challenges which are clear for the public to see.

The commencement of this discourse with the opinion of the Managing Editor is appropriate because of the point he makes in its introduction. He says “There is hardly enough space to articulate all the issues forming an imminent threat to the rule of law,…’’. Indeed, so much has been written about the chief justice (CJ) and the equally culpable Judicial Service Commission he chairs. None of this is good in at least two senses. First, nothing being written is flattering about the CJ and the JSC. Secondly, this negativity does not bode well for the administration of justice in the country.

Readers will recall that last week’s Law Society discourse was dedicated to dissecting the Weekend Analysis opinions of Assistant Weekend Editor Welcome Dlamini published in the Eswatini News Saturday editions of 14th and May 21, 2022 in which the Chief Justice and the Judicial Service Commission chairs were heavily criticised. The Law Society could not help but notice the Weekend Analysis opinion of June 4, 2022 in which its name was boldly written in the title of the opinion which reads “Law Society takes on CJ/JSC.” From the introduction in the satirical narrative of this opinion piece, it seems that the Weekend Editor was indisposed on the Saturday of the May 28, 2022 when the CJ stayed out of the headlines. The reader is reminded that this Saturday of May 28, 2022 was preceded by the two Saturdays of 14th and May 21, 2022 where the conduct of the CJ and his JSC was put under the spotlight.

The reader is also reminded that the imaginary public defender was at forefront of the scrutiny of the highly questionable conduct of the CJ and his JSC. This time around (in the Weekend Analysis opinion of the June 4, 2022, the newspaper editor draws in the Law Society which makes the preliminary submission that it possesses the proof that the judiciary is already in crisis. In fact, the Law Society does in fact possess such proof.

DISCIPLINE OF JUDGES AND LAWYERS
It does not take long before the newspaper editor revisits the controversial relationship between the CJ and the JSC on the one hand and Robinson Bertram on the other. The reader will remember the newspaper editor’s complaints about the engagement of this private law firm by the CJ (in his professional and personal capacity) as well as the JSC. The Law Society revisits this subject because of the new issues raised by the newspaper editor who makes the point that the CJ’s appointment of the senior partner at Robinson Bertram as Disciplinary Tribunal Chairperson left the Law Society at a loss for words. After highlighting the fact that the senior partner at this private law firm prosecuted former CJ Ramodibedi, former Judges Mpendulo Simelane and Sipho Nkosi, the newspaper editor concludes that this senior partner represents the CJ, the JSC, prosecutes Judges and now disciplines lawyers. The Law Society would be abdicating its duties if it did not at least seriously reflect on the implications of all these roles for a single member.

CJ ACCUSED OF DEFYING Court ORDER
The Times of Eswatini of Wednesday June 1, 2022 then reported that the CJ was accused of defying an order of court in one of the matters where he litigates in his own courts - the matter in which he is resisting the probe into alleged irregularities in the office of the Master of the High Court. The resistance of a probe into irregularities by a head of the judiciary raises its own questions about the integrity of the CJ but this is a matter for another day. High Court Judge T. Dlamini issued an order that the matter in which the CJ and his JSC challenges Parliament be referred to a Full Bench (three Judges in one High Court sitting) and that the Principal Judge in the High Court should select the Judges to hear the matter because the Chief Justice is obviously conflicted. Judge Dlamini’s finding is couched in these terms: ‘It would therefore be unjust and unfair to allow him (The Chief Justice) to choose and decide the Judges who are to hear the matter. I come to this conclusion because the founding affidavit makes it clear that the Chief Justice is the one who wrote a letter to the Minister of Justice and Constitutional Affairs telling her that the resolution to probe the office of the Master of the High Court by the House of Assembly interferes with the fundamental principles of independence of the Judiciary as enshrined in the constitution.’

June 1, 2022 Times of Eswatini article reports that, despite the Court order, the CJ proceeded to choose the Judges to hear the matter. One of the Judges chosen by the CJ to be part of the panel to hear the matter served with him in the JSC for a long time before his appointment as a permanent Judge less than three (3) months ago. The Speaker of Parliament was having none of this defiance of a court order by the Head of the Judiciary and he accused the Chief Justice of contempt of Court and of approaching the Court with dirty hands. The Chief Justice is reported to have then withdrawn the directive arguing that he was not aware of the Court order by Judge Dlamini. This allegation by the Chief Justice leaves a lot to be desired. How can the CJ not be aware of a judgment in a which he is not only a party but actively participates? If the CJ knew that the matter had been referred to a full bench, how did he miss that the same judgment had disallowed him to select the judges to hear it?

Outside the court order by Judge Dlamini, where was the Chief Justice’s sense of constitutional duty and deference when he selected Judges to hear a matter in which he is a party? If the Chief Justice does not understand this basic principle, his competence for the position of CJ is questionable. If it is not a question of competence, is it not wilfully violating the constitution? By any standard, the conduct of the CJ constitutes serious misbehaviour as contemplated by section 158(2) of the constitution, the section on removal of Judges. The Assistant Weekend Editor persuasively argues that whether or not the CJ and the JSC are found to have been in contempt of Court is beside the point. He amplifies this argument with the conclusion that the mere fact of association of the Chief Justice and the JSC with such despicable conduct is enough to cause the public to lose confidence in the judiciary. These sentiments are repeated in his last opinion piece which, unsurprisingly, were on Saturday June 11, 2022. He says that with each passing day, faith in justice through Courts is declining and there is a need to seek to restore that faith.

CHIEF JUSTICE SHOCKINGLY CHALLENGES DECISION FOR HIM NOT TO SELECT JUDGES TO HEAR HIS MATTER
The Chief Justice and his JSC have also apparently filed an application for leave to appeal the judgment that was issued by Judge Dlamini. Acting Registrar of the Supreme Court, Siphiwo Masuku, who is also the Acting Secretary of the JSC, deposed to an affidavit where she contended that the CJ and JSC were dissatisfied with the second order directing that the Principal Judge should select or empanel the Judges to hear the matter. The attention of the reader is drawn to the fact that Judge Dlamini simply referred the matter to the full bench which should ordinarily hear the matter without delay because of its importance, being a dispute between two arms of government arising from the office of the Master of the High Court which impacts the members of the public substantially.

In the notice of leave to appeal, the Acting Secretary of the JSC contended that the essence of the grounds of appeal were that the CJ had no personal interest in the matter, but was a party in his official capacity as the head of the judiciary. She contended that the CJ in terms of the Constitution, was responsible for the administration, supervision and regulating the practice and procedure of the Judiciary and there was no lawful basis why the Chief Justice should not exercise his constitutional functions laid down in sections 139(3) and 142 of the Constitution and other enabling legislation. She further argued that there was no lawful basis for Judge Dlamini to hold that the Chief Justice was conflicted. WHAT! Putting aside the validity of the arguments made by the CJ, the bottom line here is that the CJ wants to select the Judges to hear his matter and the big question is WHY?

Readers must make up their own minds about whether this is desirable or indeed consistent with the constitution. This resistance to have the matter heard by impartially selected Judges comes hot on the heels of another matter where the CJ was defending proceedings in which incarcerated accused persons merely sought to have their matter enrolled in the Supreme Court after inordinate delays on his part to enrol it. This begs the question how a CJ defend proceedings where accused persons simply want to access to justice. Is that not for the Directorate of Public Prosecutions to do whilst the CJ remains the impartial adjudicator he should be? Ironically, the Chief Justice does not waste time in causing the enrolment of a matter in which he is a party. Apparently, the Judge Dlamini decision was made on Friday the April 22, 2022 but the CJ had selected the Judges to hear his matter by Thursday the April 28, 2022.

THE IMAGE OF THE JUDICIARY TORN TO SHREDS
Two meetings of the Law Society on administration of justice challenges many of which the newspapers detail almost daily during the same period, there is no doubt that the image of the judiciary has been torn to shreds as the newspaper editors conclude. It is indeed time for the Minister for Justice and Constitutional Affairs to act.