LAW SOCIETY’S 22 REASONS WHY MASTER’S OFFICE PROBE SHOULD STOP

MBABANE – The Law Society of Eswatini (LSE) has presented 22 reasons why the Judicial Commission of Inquiry instituted by Chief Justice (CJ) Bheki Maphalala should be halted.

Last Tuesday, Maphalala established the commission of inquiry into allegations of impropriety, maladministration, abuse of power and incidental matters at the Master’s Office.
Members of the panel are Judge Majahenkhaba Dlamini (Chairperson), Judge Mzwandile Fakudze, Judge President Sifiso Nsibande, Judge Maxine Langwenya and Judge Lorraine Hlophe. The Law Society has since written to the head of the Judiciary, Maphalala, calling upon him to reconsider his decision to establish the inquiry, disband and defer it to a lawful authority.

Organs

In the letter that was delivered to the CJ yesterday, the lawyers informed him that the organs that were empowered to investigate the irregularities at the Master’s Office had shown willingness to set up an investigation. “Ironically, a parliamentary investigation into the Master’s Office was stopped through an application instituted by the chief justice,” reads part of the correspondence that was also copied to the attorney general.   The Law Society brought it to the attention of the CJ that the administration of estates, as per Legal Notice No.189 of 2015, fell under the minister of Justice and Constitutional Affairs.

This notice states where the Master’s Office falls under.  According to the notice annexed to the correspondence, the Master‘s Office is the responsibility of the minister of Justice and Constitution Affairs. “The minister of Justice and Constitutional Affairs has the mandate and is empowered by the laws of the country to establish such an Inquiry, but your office does not have such mandate. Honourable chief justice, as lawyers we all know that the exercise of any public power (legislative, executive or judicial) must derive from the law,” said the lawyers. The learned friends informed the CJ that there must be powers, which empowered him to establish a commission of inquiry for his actions to be lawful.  

Powers

The LSE told Maphalala that the exercise of powers by him in establishing the commission was without any legal basis whatsoever. The Law Society also highlighted to Maphalala that the provision of the Constitution he relied on, as empowering him to establish the commission, did not in any way confer such powers on him.  They contended that the CJ did not have powers under the laws of the country to establish a commission of inquiry. “Instead, the law that governs commissions of inquiry and the mode of holding such commissions of inquiry is the Commission of Enquiry Act No.6 35 of 1963,” said the lawyers.

Section 3 (1) of the Commission of Enquiry Act stipulates that; “Any minister may, by notice in the gazette, issue a commission appointing one or more commissioners, and may therein provide that one or more members shall constitute a quorum for the purpose of the inquiry.”  In the correspondence, the Law Society brought it to the attention of the CJ that the legal authority to establish a commission into the Master’s Office vested in the minister of Justice and Constitutional Affairs, being the minister with responsibility for the Judiciary and the administration of estates.

According to the LSE, the responsibility was assigned to the minister of Justice and Constitutional Affairs by His Majesty the King in terms of Legal Notice No.189 of 2015, titled ‘Assignment of Responsibilities to Ministers’.  The lawyers highlighted that in doing so, the King was exercising powers conferred on him by Section 70 of the Constitution.
Section 70 states that; “ The King may, after consultation with the prime minister, assign to the prime minister or any other minister responsibility for the conduct of any business of the government, including the administration of any department of government.” They cautioned the CJ against playing with public emotions on a matter of public importance.

The LSE told the CJ that by establishing an inquiry into the Master’s Office without legal authority, he had allegedly usurped powers conferred on the minister of Justice and Constitutional Affairs. It was further the lawyers’ contention that the CJ had also allegedly arrogated to himself responsibilities assigned by the King to the minister of Justice and Constitutional Affairs in terms of Legal Notice No.189 of 2015. The AG and the Ministry of Justice and Constitutional Affairs were also served with the correspondence and this is confirmed by the stamps thereon.

So far two individuals appeared before the panel of the commission of inquiry, which is held at the Industrial Court of Appeal housed at the FINCORP Building along Gwamile Street.
Thembi Dlamini was the first person to appear before the commission. She is the daughter of the late well-known Matsapha businessman Alfred Sikhakhane Dlamini. Thembi, among other allegations, told the commission that her father’s estate was being looted at the Master’s Office.

Widow

The second woman to appear before the commission was Sibongile Dlamini, who is the widow of Hamilton Nxumalo, who was employed at Gwamile Voctim. She accused the master of continuing to distribute her husband’s estate despite a pending court case in which she is challenging her purported divorce decree, which she wants to be nullified. The commission sits on Mondays, Tuesdays and Wednesdays. Thursdays and Fridays are reserved to consider written submissions as well as documents presented by those who appeared before the commission for oral evidence. The commission receives both written and oral submissions.

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