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LSS QUESTIONS COMMERCIAL COURT CONSTITUTIONALITY

20/06/2022 09:16:00 Mbongiseni Ndzimandze and Kwanele Dlamini

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MBABANE – The Law Society of Swaziland (LSS) has questioned the constitutionality of the newly-established Commercial Court.

The LSS, which is one of the stakeholders of note in the establishment of the Commercial Court, said they were not consulted as provided for in the Constitution when the courts were established. On October 7, 2021, Chief Justice (CJ) Bheki Maphalala issued a practice directive in which he detailed how the Commercial Court would operate. The Commercial Court is housed at the Royal Science and Technology Park (RSTP) at Nokwane. In establishing the Commercial Court, Section 150(6) of the Constitution provides that there shall be such divisions of the High Court, consisting of such number of justices respectively as the chief justice may determine after consultation with the minister responsible for Justice and the president of the Law Society. The Commercial Court is a division of the High Court.

In March 9, 2022, the LSS wrote to the chief justice concerning the establishment of the Commercial Courts. The Commercial Court establishment, as a division of the High Court, according the LSS, requires engagement with the Law Society. The letter to the chief justice, which was signed by the LSS President, Mangaliso Magagula, stated that the Law Society was not engaged when the court was established.

Composition

Engagement with the LSS, said Magagula, was in terms of Section 150 (6) of the Constitution. The section states that the composition and establishment of divisions of the High Court are done by the chief justice in consultation with the minister of Justice and Constitutional Affairs and the president of the LSS. “Regrettably, there has been no such consultation with the president of the Law Society. The views and input of the law profession have, therefore, not been sought. There is a constitutional duty to consult the Law Society in the establishment and composition of divisions of the High Court,” reads the letter to the CJ. The LSS president said they were requesting an opportunity to engage with the CJ on this matter in order to avoid any controversy about the constitutionality of the establishment of the court.

The letter was copied to the minister of Justice and Constitutional Affairs. The Secretary General of the LSS, Charity Simelane, said the president of the Law Society was not consulted when the Commercial Court was established. Simelane was responding to a questionnaire sent to her on Friday. “The Law Society president was not consulted prior to the establishment of the newly-established Commercial Court. In terms of the Constitution, there shall be divisions of the High Court consisting of a number of justices as the chief justice may determine after consultation with the minister of Justice and the president of the Law Society of Swaziland,” Simelane said.

Consulted

The Ministry of Justice and Constitutional Affairs was consulted by the Chief Justice regarding the establishment of the commercial court. This is according to the Minister of Justice and Constitutional Affairs, Pholile Shakantu. “Having observed the time and cost it takes to resolve commercial disputes in the country, the Ministry of Justice (and Constitutional Affairs) supports the establishment of a commercial bench by His Lordship the Chief Justice MCB Maphalala. The commercial bench is in the nation’s Vision 2022 National Development Strategy to accommodate the demands of the growing complexity of business and trade. “Investors evaluate the time, cost and quality of judicial processes, before they invest in any country. The commercial bench will, therefore, foster a conducive environment for international and domestic investors to do business better.

“Streamlining commercial cases and bringing them under one umbrella will benefit business, improve the ease of doing business and attract more investors to Eswatini, which will in turn create more jobs for emaSwati. The Ministry of Justice and government was consulted by the chief justice,” said Shakantu. A questionnaire sent to the registrar of the High Court and acting Supreme Court registrar on Friday for the attention of the chief justice had not been responded to by the time of compiling this report. In October last year, the chief justice announced that the much-awaited Commercial Court had started working with immediate effect.

The Commercial Court deals with all types of business disputes, including breach of contract, tort, property, trust and probate, IT disputes, judicial review, corporate mergers, global restructuring, insurance portfolio transfers, International Swaps and Derivatives or other investment disputes, and intellectual property. The Investor Road map Unit in 2015 said although the country had improved in the World Bank Ease of Doing Business 2016, there were areas where Eswatini was not performing well in, for instance, enforcing contracts.

Management

Matters enrolled at the Commercial Court are less likely to be postponed on the date of the actual hearing, since there are various steps in place to ensure that matters are ready for trial, including case management and holding frequent pre-trial conferences. According to the CJ, the Commercial Court would be a division of the High Court of Eswatini and vested with jurisdiction to hear and determine commercial disputes. He further pointed out that the court (Commercial Court) would utilise and be guided by the High Court Rules in so far as the rules were not inconsistent with the practice directive. “The mandate of the Commercial Court is to promote the expeditious and efficient resolution of commercial disputes,” said the CJ, Maphalala.

He further pointed out that the registrar of the High Court would allocate commercial cases to the judges of the Commercial Court after due consultation with him (CJ). Maphalala said judges of the Commercial Court would be appointed by the King on the advice of the Judicial Service Commission (JSC), in accordance with Section 153 of the Constitution.

Qualification

The CJ went on to state that the qualification for the appointment of the judges of the Commercial Court would be similar to those of the judges of the High Court and in accordance with the Constitution. “The procedure applicable to the Commercial Court shall be the same as the procedure applicable to the High Court; and the proceedings of the court shall be conducted in public subject to the provisions of the Constitution,” said Maphalala, who is also the chairman of the JSC. In the practice directive, the CJ also highlighted that appeals from the Commercial Court would be dealt with by the Supreme Court of Eswatini and the Rules of Court applicable to appeals in the Supreme Court would be applied.

“Subsequent to the issuance of summons at the High Court, any party to the suit may apply to the registrar of the High Court to have the matter designated as a commercial dispute for the determination of the Commercial Court. Notice should be given to the other party to the proceedings,” reads part of the practice directive. Maphalala further highlighted that an application for the matter to be designated as a commercial dispute, should be made by delivering a letter to the registrar. The letter, according to the CJ, must set out the legal basis for the designation of the matter as a commercial dispute. “If a party has brought an application to the High Court which contains commercial issues, the party may apply to the registrar for the matter to be removed from the High Court roll and enrolled before the Commercial Court,” said the CJ. During a meeting held recently, members of the LSS took a resolution on the establishment of the Commercial Court which will be communicated to the public this week.