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MASTER’S PROBE TAINTED BEFORE STARTING - HUMAN RIGHTS LAWYER

21/01/2024 15:44:00 Sifiso Dlamini

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MBABANE – A majority of people including legal experts are of the view that the Master of the High Court probe has been tainted before it even begins.

A lot of questions have been raised on whether the Judicial Commission of Inquiry meant to look into alleged irregularities and corrupt practices within the Master’s Office will bring the intended relief to emaSwati. The sudden U-turn made by the Chief Justice (CJ) Bheki Maphalala has brought about concerns on whether the inquiry will be transparent and fair, because the commissioners are all members of the Judiciary. It has further been questioned if the member of the commission will not be compromised since it was evident that CJ Maphalala had vested interest in then matter yet they refer to him as their boss.

Also, the sudden change of heart by the CJ has raised a lot of questions since he was opposed to the probe insisting that the Judiciary was an independent arm of government. His conduct has also been questioned by members of the Parliament Select Committee that was tasked with undertaking the probe. The commission which was set up by the CJ last week consists of five judges and will be headed by Supreme Court Judge Majahenkhaba Dlamini, who will be deputised by High Court Judge Mzwandile Fakudze. Notably, Judge Dlamini is a former Attorney General (AG) while Judge Fakudze was the deputy AG.

Other members of the commission are, Industrial Court Judge President Sifiso Nsibande, High Court Judge, Maxine Langwenya, Industrial Court Judge, Lorraine Hlophe and its Secretary is Deputy Supreme Court Registrar, Siphiwo Masuku. On the lap of the commission are a number of issues, which include the persistent and continued negative reports about alleged improprieties, maladministration and abuse of power at the Office of the Master of the High Court. While commissioning the inquiry, the CJ stamped his authority and insisted that the judiciary was an independent arm of government.

Commission of inquiry

When asked to clarify what would happen to the pending court case, where the Office of the Master of the High Court was a subject since there was now a commission of inquiry in place. In response, he said they would see what would happen to the case in court, but the commission would continue to work. Human Rights Lawyer, Sibusiso Nhlabatsi acknowledged that the probe was necessary and long overdue because millions of estate funds belonging to widows and orphans have gone missing over the years. He said this was to the extent that a lot of children have been deprived of their right to education because their parents’ estate funds went missing.

He said as much as the probe was a necessity, it should also be lawful. “We should not just be excited because now there is a probe but we must ensure that the probe is within the parameters of the law,” he said. Nhlabatsi said as the probe stood at present, it was not within the ambit of the law because it has been commissioned by the CJ himself, who has set up his own commission of inquiry yet according to the law, he did not have the powers to do so. He also highlighted that in terms of the Commission of Inquiry Act, 1963, it was clear that a commission of inquiry shall be commissioned by a minister, meaning it was the minister responsible for that particular ministry.

“For instance in this case, the Judiciary falls under the Ministry of Justice and Constitutional Affairs, meaning that Minister Prince Simelane is the one who has the powers to commission the inquiry,” he said. He also pointed out that the inquiry was not the first-of-its-kind as there has been inquiries commissioned before. He said these included the inquiry on the death of Mozambican national Mozambican Luciano Zavali, who died while under interrogation at the Manzini Police Station, and then most recent one being that of Thabani Nkomonye’s which caused an uproar in the country leading to the civil unrest, among others.

He said both of the mentioned inquiries were commissioned by the prime minister who is the minister of police. He said he was in concurrence with The Law Society of Eswatini (LSE) in that the CJ acted beyond his powers, which then tainted the whole process without taking into consideration whether the judges who have been appointed were credible or not. “Basically, the process has been tainted before it has even started,” said Nhlabatsi. He further noted that there was a conflict of interest, while citing that not so long ago, Parliament elected a select committee to conduct an inquiry on the irregularities at the Master of the High Court which was opposed by the CJ on the basis that the Judiciary had independence which clearly showed that the CJ was conflicted.

Conflicted

“It is clear that the CJ has an interest in the matter as he has shown, then on wonders why then does he set up the commission of inquiry as he is conflicted because this then taints the process even further,” he said. He further referred to the order issued by the High Court on the matter involving the Parliament probe and the CJ which was not followed by Maphalala. He recalled that the High Court issued an order that the matter should be referred to a full bench and the CJ did not do that but instead decided to file an appeal which further proved the magnitude of his interest on the matter. “We understand that the Judiciary must be independent, but its independence does not mean then Judiciary is not accountable. The Judiciary must be held accountable because it takes money from the public,” he said.

He once again insisted that the process started off on a bad and illegal note yet it was necessary. He said the strangest part was that the very same judges that have been appointed by the CJ refer to him as their boss, which begged the question that if their findings were against the CJ, would they be able to bring that to light. He said the inquiry had been commissioned in the wrong way and there was a need for a proper way to establish the commission because the results should not be pre-empted, but be open and fair. Pertaining to whether there was a need for the appointment of five judges, Nhlabatsi clarified that there was nothing wrong with the number as legally, an inquiry panel could have as many people as necessary. He however pointed out that such panelists needed to be appointed from many different sectors unlike in this case where only members of the judiciary were appointed.

“To me one judge would have been enough and then a lawyer should have been appointed, government representative, parliamentarian and even someone from the business sector should have also been considered,” he said. He stated that currently, it seemed like this was a court, not a commission and the manner in which the inquiry has been commissioned has been made to look like a legal issue or inquiry, yet the probe was meant to investigate the irregularities concerning peoples’ monies.

“Is the matter no longer sub-judice” These sentiments were shared by former Gilgal MP, Kenneth Sadla Fakudze who was the chairperson of the select committee elected by the 11th Parliament to probe alleged irregularities and corruption at the Master of the High Court. After the committee was elected, the Chief Justice Bheki Maphalala stopped the investigation. This came in the form of a report presented by the Attorney General, Sifiso Khumalo, which detailed that the judiciary as an independent arm of government could not be probed by Parliament. This was followed by the CJ filing court papers in this regard insisting on the judiciary’s independence.

Thereafter, Members of Parliament were barred from raising the matter in Parliament since it was sub-judice, meaning the matter was under judicial consideration and therefore prohibited from public discussion elsewhere. Fakudze said he was shocked by the CJ’s conduct, who this week appointed a Judicial Commission of Inquiry to look into alleged irregularities and corrupt practices within the Master’s Office. “When we raised the same concerns in Parliament and elected the select committee, the CJ intervened and I am now shocked that he has turned around and appointed his own judicial inquiry,” he said.

He said this raised a lot of questions on whether the inquiry would be transparent and fair. “Nge siSwati kutsiwa yake yatiphekela yini inkhukhu emanti ekutihlutsa,” wondered the former legislator. He said if the CJ wanted people to have confidence in the outcome of the inquiry, he should have not involved himself in the probe. “Our committee was not partisan but he is, which raises a lot of questions about his conduct,” he said. He also insisted that the inquiry should ideally have been instituted by the minister and not the CJ. He further wondered how the Minister of Justice and Constitutional Affairs, Prince Simelane felt about the whole issue and said he was waiting to see how he handled the situation. He said whenever they tried to enquire about the CJs decision to stop the probe in Parliament; they were informed that the matter was sub-judice. “Is the matter no longer sub-judice,” wondered Fakudze.