THULANI WANTS JUDGE RECUSAL

MBABANE – Human rights Lawyer Thulani Maseko wants Supreme Court Judge Phesheya Dlamini to recuse himself from his case against the Liquor Licensing Board because he is a prince and chief.

Maseko said he feared that the judge would be biased against him because he would sympathise with the chief of Ka-Luhleko, from whom he was advised to seek permission to operate a bar on Eswatini Nation Land, because they are both chiefs and Bantfwabenkhosi.

 Maseko said the two are family. In this matter the Board initially refused to grant Maseko a license to operate Liyabuya Wine and Malt, popularly known as Dambhadi, which is situated in Bhunya.
Maseko took the matter to court and High Court Judge Titus Mlangeni issued an order that the Board should grant the human rights lawyer the licence. The Board appealed the decision. On October 10, 2018, the Supreme Court struck off the appeal as the Board and the attorney general had failed to file a court record on time as per the rules of the court. The veracity of these allegations is still to be tested in court.

The order was issued by Judge Dlamini sitting with Chief Justice Bheki Maphalala and Judge Benjamin Odoki, who is now retired. Maseko said he was given written reasons to strike off the appeal to enable him to determine how the court came to that decision.

The chairman of the Board applied for leave to file again. The matter went to court on May 6, 2019, according to Maseko, Judge Dlamini sat on the bench. He said he instructed his attorney, Lucky Howe, to move an application for the recusal of Judge Dlamini.

A recusal application is first moved before the judge concerned and in the event he declined to remove himself from the matter, a full-blown application is then filed by the party seeking the recusal.
In his application, Maseko submitted that what made the recusal application justified was that in terms of the rules of court, Judge Dlamini was part of a bench that made an order that the appeal was abandoned. Maseko said he found it strange that the court would issue such an order in the face of an application that the appeal had been abandoned in terms of the rules.

Indication

This, according to Maseko, was an indication that the court and Judge Dlamini allegedly failed to apply themselves in the matter that was before them. He said this gave rise to the perception of bias against him.
He also mentioned that the order of October 10, 2018 was being challenged through a counter-application and was sought to be reviewed.
“Clearly the first respondent (Judge Dlamini) cannot sit and review his own decision. The review application may be heard by a different court and this should bar the first respondent from sitting in a matter where his order is sought to be reviewed and set aside.”

He said another reason Judge Dlamini should recuse himself from the matter was that he was also a chief. Maseko submitted that the AG and the Board contend that in seeking the licence to run the bar on Eswatini Nation Land, he should get permission from the chief of KaLuhleko. He argued that there was nowhere in the legal framework governing the liquor business requiring one to have permission from either the King or the chief.
Maseko submitted that he had reasonable fear that Judge Dlamini, being a chief himself, would be sympathetic to the arguments of the Board and the AG.

“Not only is the first respondent a chief, he is also a prince. The whole idea of the second respondent (chairman of the Board) dragging the powers of traditional authority in a matter where they are of no relevance is to make Eswatini Law and Custom applicable through the backdoor.” Maseko informed the court that the fact that Judge Dlamini was a prince appeared in the gazette by which he was appointed a judge of the Supreme Court.

Advised

“I am advised and verily accept that chiefs (and indeed members of the royal family) are footstools of the traditional government structures of Swaziland (Eswatini) as provided in Section 233(1) of the Constitution.
“As a member of such an establishment, I have a well grounded apprehension that in a matter such as this, the first respondent is likely to be sympathetic and therefore against me.”

On another note, the human rights lawyer submitted that his fear was buttressed by the fact that Judge Dlamini was a former attorney general of the country and that he allegedly had a close relationship with that office for a long time.
According to Maseko, the fact that the chief of KaLuhleko had not been cited in the proceedings did not take away that he had a direct interest in the matter. He alleged that Judge Dlamini had a high propensity to rule in favour of the respondents no matter how weak their case may be. Maseko mentioned that his submissions should not be seen as a personal affront to Judge Dlamini and that his interest was to see justice done in his matter.
The matter is pending in court.

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