Times Of Swaziland: Lawyers win case against Parliament

Lawyers win case against Parliament
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 LINDA JELE on 10/08/2012 00:00:00


MBABANE – The High Court has delivered a landmark judgment clarifying the
separation of powers between Parliament and the Judiciary.
The decision by Parliament to set up a committee to investigate lawyers for
alleged misuse of members of the public’s moneys and corruption has been set
aside with costs.
A full bench of the High Court yesterday unanimously directed that the
Parliament Select Committee set up to investigate lawyers and invite members of
the public to forward complaints against lawyers, should stop.
The bench comprised of Judges Mbutfo Mamba, Nkululeko Hlophe and Esther Ota.
The judgment was delivered by Judge Hlophe.
He said the legal profession, of which lawyers are members of the Law Society of
Swaziland, was an integral part and governed by the Legal Practitioners Act of
1964.
He said Parliament set up a Select Committee to investigate allegations of
unprofessional conduct of lawyers suspected of mismanaging Trust Accounts and
enriching themselves through fraudulent means.
He said the bench agreed with Advocate Barry Skinner for the lawyers, that
Parliament did not have powers to exercise judicial powers, because such was
preserved for the Judiciary.
The court also said Parliament’s contention that Speaker Prince Guduza, in his
capacity as head of the House of Assembly and MP Nonhlanhla Dlamini, the
committee’s Chairperson were entitled to carry out the investigations,
overlooked the doctrine of the separation of powers.
Judge Hlophe said the doctrine ensured that the Legislature did not perform
duties of either the Judiciary or the Executive or vice versa.
"In particular (we agree) that the exercise by the select committee in so far as
it purports to investigate legal practitioners or lawyers for acts of corruption
or mismanagement of trust accounts takes the matter nowhere in as much as it
will be empowered to adjudicate whether a particular attorney accused of either
fraud, misappropriation of client’s money or corruption as guilty or not, in
the case of that particular attorney denying such allegation,"   he said.
He said Parliament cannot be allowed to conduct an exercise in futility at the
expense of lawyers if it can neither adjudicate a dispute that arises nor an
offender if identified.
"That is why it would be appropriate for Parliament or any member thereof, if it
or he is aware of any unlawful conduct by members of the applicant, (Law Society
of Swaziland) or any one for that matter to report such unbecoming conduct to
the lawfully established structures to deal with such conduct; it only reserving
to itself the power to amend the legislation establishing such structure, if it
is of the view same is dysfunctional in its current form," Judge Hlophe said.
The court further said Section 129 of the Constitution of Swaziland, from which
Parliament relied in its case, did not entitle it to regulate the legal
profession.  It said such powers to regulate the legal profession, Parliament
gave to the Law Society of Swaziland through a mechanism established in terms of
the Legal Practitioners Act.