Times Of Swaziland: SWAZI OBSERVER STATEMENTS HIGHLY CONTEMPTUOUS - JSC

SWAZI OBSERVER STATEMENTS HIGHLY CONTEMPTUOUS - JSC
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BY MBONGISENI NDZIMANDZE  on 03/04/2014 05:44:00


MBABANE – The JSC says the statements that have been published by the Swazi
Observer are highly contemptuous.
JSC is the Judicial Service Commission.
The JSC was responding to  articles which were carried by the  newspaper where
it was alleged that the chief justice (CJ) and  two judges claimed and got paid
close to E300 000 each for the November 2013 Supreme Court sitting.
The two resident judges of the Supreme Court of Swaziland are Judge Bheki
Maphalala and Judge Esther Ota.
It was further alleged by the publication that the claims were made at a time
when the high court was not in recess and, therefore, the judges and the CJ were
expected to be still in office executing their duties. In one of the articles,
it was further alleged that the only time they were supposed to claim for the
sitting allowance of the Supreme Court was when they had to be recalled from
recess to come and attend to appeal cases.
misleading
In a statement, the JSC stated that the articles which were published by the
newspaper were misleading. In the articles, the publication also scrutinised the
appointment of Judge Mpendulo Simelane.
The JSC has since warned organisations and members of the public that it was
inappropriate for anyone to comment on the pending contempt of court proceedings
at this stage.
The commission further stated that contempt of court in this jurisdiction was
one of the most serious offences against the administration of justice.
“It is for that reason that it is not protected as a right of freedom of
expression under Section 24(3) (b) (iii) of the Constitution. On the contrary,
this section plainly provides a limitation to freedom of expression in order to
maintain the authority, dignity and independence of the courts. We observe that
in the United States of America, the offence of contempt of court was abolished
in the case of Bridges vs State of California. It will be seen, therefore, that
those who seek to copy the American system on this point are misguided,”
stated the JSC.
The JSC said in this jurisdiction, freedom of expression was subject to respect
for other people’s rights and it was not absolute as the progressive
organisations and other like-minded persons seem to suggest. Responding to the
articles, the JSC stated that the chief justice and the two resident judges of
the Supreme Court are entitled to receive both their salaries as well as
allowances in discharging their duties in the Supreme Court.
The commission further stated that in the case of the chief justice, his
contract provides for payment of both salary and sitting allowances.
“The resident judges of the Supreme Court are legally entitled to sitting
allowances and no irregularity is being committed by the judiciary in this
regard. Since time immemorial, resident and non – resident judges of the
Supreme Court have lawfully been paid the said allowances. It is a benefit
which, in terms of the constitution cannot be taken away from them,” reads
part of the statement.
The JSC further stated that Section 141(6) of the Constitution provides that the
salary, allowances, privileges and rights in respect of leave of absence,
gratuity, pension and other conditions of service of a Judge of the Supreme
Court shall not be varied to the disadvantage of that judge.
The commission also stated that it was common cause that the resident judges of
the Supreme Court had been appointed by the CJ to sit at the High Court in terms
of Section 150(1) (c) of the Constitution due to the shortage of High Court
judges in dealing with the backlog of cases.
“This does not make them High Court judges but they retain their status of
Supreme Court judges. It is, therefore, lawful that these judges receive both
salaries as well as sitting allowances in discharging their duties in the
Supreme Court,” reads part of the statement.
comprises
According to the statement by the JSC, in terms of the Constitution, the Supreme
Court comprises the CJ and “not less than four other justices of the Supreme
Court.”
“High Court Judges are, therefore, not judges of the Supreme Court in terms of
the Constitution; hence, they cannot demand, as of right, to sit in the Supreme
Court. It is, therefore, misleading, misconceived and mischievous for the Swazi
Observer Newspaper to insinuate that resident judges of the Supreme Court should
rotate with judges of the High Court,” stated the JSC secretary Lorraine
Hlophe in the statement.
The JSC secretary further stated that resident judges of the Supreme Court sit
together with non-resident judges during the Supreme Court sessions; hence it
would be inconceivable and mischievous that they would be remunerated
differently when discharging the same duties.
“Similarly, the chief justice, as head of the judiciary, has the power to
determine not only the two sessions of the Supreme Court but special sittings of
the Supreme Court in accordance with Section 142 of the Constitution as well as
the Court of Appeal Act,” stated the commission in the statement.
The commission also stated that Section 2 of the Legal Notice No.177/2013
dealing with the conditions of service of the superior courts retains the status
quo and provides as follows: “without prejudice to any other benefit conferred
by any law, the holder of an office specified in the First and Second schedule
shall be paid not less than a salary or allowance or both (as the case may be)
specified in relation to the holder, in the First and Second schedule.”