WE DESERVE PROPER GUIDANCE

The now questionable Judicial Commission of Inquiry into the Master’s Office’s operations, constituted by Chief Justice (CJ) Bheki Maphalala, needs proper legal clarity. It has become ‘incangancanga’, as one speaker at Sibaya described a supposedly perplexing situation.

At least, Attorney General (AG) Sifiso Mashampu Khumalo, who was presiding over the Sibaya, was on hand to give guidance when needed. Well, we need him here now to provide clarity on the current conundrum.  This comes after Prince Simelane, the Minister of Justice and Constitutional Affairs, publicly expressed worry over the investigation on Wednesday, while touring judicial facilities in Nhlangano. He stated that he was unaware of the inquiry and was surprised that no one had the decency to notify the ministry about such an important national exercise, yet they are supposed to be working together. When this publication requested a comment on the minister’s statement, neither the CJ, the head of the inquiry nor the registrar could respond.

Appoint

According to the Law Society of Swaziland (LSS), Prince Simelane, or a member of the Executive, has the legal jurisdiction to appoint such an investigation under the Commissions of Inquiries Act, 1963. Section 3(1) specifies that, ‘any minister may, by notice in the Gazette, appoint one or more commissioners and specify that one or more members will constitute a quorum for the purpose of the inquiry’. Section 3(3) states that, ‘any minister may, in appropriate circumstances and for a specified purpose and with the consent of Cabinet, appoint by notice published in the gazette, a committee on such terms and conditions to carry out a specific activity, mission, or duty, as the case may be’.

The Law Society claims that CJ Maphalala has exceeded his authority because the creation of commissions of inquiry is only reserved for the Executive branch of government. In announcing the inquiry, the CJ stated that the Judiciary was independent and that he exercised powers granted to him by Section 139(5) of the Constitution. The clause states that, according to the requirements of this Constitution, the CJ is the head of the Judiciary, responsible for its administration and supervision. The Constitution specifies the CJ’s administrative and judicial tasks, but not the power to appoint inquiries. It only allows for the formation of an ad hoc committee in cases when the CJ’s behaviour is called into question.

Factors

This is where the AG should assist the public, because there are many other factors at play here, in addition to the two sections and the minister’s startling statement.For example, if such inquiries require a gazette before they can commence, what would happen to the current proceedings as it has not been publicly issued? A gazette of this nature would most likely be signed by the minister after Cabinet’s approval. Without a gazette, what instrument will be utilised to authorise the commissioners’ sitting allowances? Other concerns, as discussed here last week, include how the CJ can appoint the inquiry when there is a pending case on the same subject in court.

Members of the 11th Parliament launched an investigation into the Master’s Office in response to frequent public complaints and an audit finding by Auditor General Timothy Matsebula.
Matsebula voiced concerns about alleged irregularities in the management of approximately E300 million in the Guardian Fund, as well as returning bail money after suspects are acquitted and the loss of critical documents, which have left widows and children worse off.

The CJ filed an application seeking to block the MPs through a court application, stating that the Legislature lacked jurisdiction to investigate subjects under the independent Judiciary. The case is pending. There were also fears that the issues made regarding the Master’s Office would have a direct impact on the CJ and hence could not be considered unbiased.
The first sitting of this now controversial inquiry appears to lend credence to this worry, as one woman described how she was unable to obtain aid from the Master’s Office and turned to the CJ, who then became involved in the unsuccessful attempts to address the matter.

Customary

She alleged that the CJ made remarks implying that it was customary for the master or deputy to handle the papers of wealthy individuals. He allegedly told her that the situation would easily be resolved because her father’s will was straightforward. So, will the inquiry find the CJ guilty of failing to carry out his administrative duties in ensuring justice for this woman, and what should they recommend be done to their boss? The first witness at the inquiry also brought up the problematic practice of lawyers in estate affairs, however, she stopped short of declaring she no longer trusts them altogether since they supposedly work in collusion with the Master’s Office.

Some public critics believe this is why the LSS is making a lot of noise regarding the legality of the investigation. However, the LSS management says they welcome the probe but only want it to be conducted in accordance with the law to prevent gaps that would subject the process to litigation and result in a complete waste of taxpayers’ money. With all of this legal jargon at play, someone needs to guide us out of the woods if we are to have faith in the establishment of this inquiry and not dismiss it as a whitewash or smokescreen. It should basically stop and wait for the air to be cleared. The AG, Khumalo, should provide assistance here, as his office is tasked with issuing a gazette to legitimise this process. The sooner this occurs, the better for all people who sorely require justice. For the time being, everything appears disorganised and uncertain.

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