CJ ACCUSED OF DEFYING COURT ORDER

MBABANE – Chief Justice (CJ) Bheki Maphalala reportedly defied a court order by empanelling a bench to hear the parliamentary probe matter involving the Office of the Master of the High Court.

High Court Judge Ticheme Dlamini in his judgement had directed that the matter be referred to a full bench to be empanelled by Principal Judge Qinisile Mabuza since the CJ was conflicted. This is in the matter where the CJ and the Judicial Service Commission (JSC) wanted to interdict Parliament Select Committee from investigating alleged gross maladministration, abuse of power and embezzlement of estate monies at the Office of the Master of the High Court. In his judgment, Judge Ticheme found that it would not be prudent for the CJ to empanel the bench to hear the matter as he was conflicted.

Unfair

“It, therefore, would be unjust and unfair to allow him (CJ) to choose and decide the judges who are to hear the matter. I come to this conclusion because the founding affidavit makes it clear that the CJ is the one who wrote a letter to the minister of Justice and Constitutional Affairs telling her that the resolution to probe the office of the master of the High Court by the House of Assembly interferes with the fundamental principles of the independence of the Judiciary as enshrined in the Constitution.” Despite the court order, the CJ is reported to have proceeded to empanel the bench which consisted of judges Nkosinathi Maseko, Bonginkhosi Magagula and Bongani Sydney Dlamini.  According to the directive that was issued by the CJ, Judge Maseko will preside over the bench and Judge Dlamini will write the judgment.  He then scheduled the matter to be heard in Court F on June 20, 2022.

The CJ and the commission have also filed an application for leave to appeal the judgment that was issued by Judge Ticheme on April 8, 2022.  Acting Registrar of the Supreme Court Siphiwo Masuku, who is also the Acting Secretary of the JSC, deposed to an affidavit where she averred that the applicants (CJ and  JSC) were  dissatisfied with the second order, directing that the principal judge, by virtue of being the most senior judge, should empanel the bench. In the notice of leave to appeal, Masuku averred that the essence of the grounds of appeal were that the CJ had no personal interest in the matter, but was a party in his official capacity as the head of the Judiciary. She contended that the CJ in terms of the Constitution, was responsible for the administration, supervision and regulating the practice and procedure of the Judiciary.  It was further her argument that there was no lawful basis for Judge Ticheme, to hold that the CJ was conflicted. According to Masuku, there was no lawful basis why the CJ should not exercise his constitutional functions laid down in sections 139 (3) and 142 of the Constitution and other enabling legislation.

Independent

The acting secretary of the JSC further contended that the functions of the office of the CJ were independent and could not be under the control of any person.  She said, in fact the High Court had no such powers. “The court below erred to refer this matter to the principal judge of the High Court as it did not have such powers, in terms of the Constitution. In terms of Section 150 (5) of the Constitution, it is the CJ who can delegate his powers to the principal judge to do certain functions and not a court,” argued the JSC acting secretary. It was further her argument that the High Court erred in law to grant the principal judge powers which she allegedly did not possess in law. “In any event, even if the office of the chief justice is conflicted in the matter, which is still denied, the Constitution does not bestow the functions of the chief justice to the principal judge. Section  153(2)(b) of the Constitution states that in the event the chief justice is unable to perform his functions, then those functions shall be performed by the most senior of the justices of the Supreme Court,” submitted Masuku.

Functions

The acting JSC secretary said it would be the submission of the applicant in the Supreme Court  that the High Court, therefore, erred in law to refer the functions of the CJ to the principal judge of the  High Court.  She said, this was yet, another reason why the order of the High Court was appealed and the applicants had good prospects on appeal. Masuku submitted that another court, having regard to what was set out above, would have come to a different conclusion. “The present matter is of substantial importance in our jurisdiction as it relates to the Constitutional functions of the head of the Judiciary. The spirit of the Constitution is that the functions of the chief justice should be jealously protected so that the Judiciary is not only independent, but not subject to any other person or authority,” argued Masuku. It was further her contention that the Constitution provided that the CJ was the head of the Judiciary responsible for its administration, supervision and direction.

According to Masuku, the Constitution further provides that it was the CJ, not a court or another person, who could delegate the functions of his office to the principal judge.   It was also her averments that there was no instrument from the CJ to the principal judge to perform functions the High Court had directed her to do. “In any event, if the CJ is not able to perform his functions then the most senior judge of the Supreme Court should perform his functions not a junior judge of the High Court, with respect,” she argued. Masuku concluded her submissions by alleging that the applicants had met the requirements to be granted leave to appeal the High Court judgment. Meanwhile, in his judgment, which the CJ and the JSC want to appeal, Judge Ticheme said in his opinion, the attorney general (AG) was correct that the CJ was conflicted in this matter. He said this was because of the interest the CJ had in the matter.

Judge Ticheme said he, therefore, came to a conclusion that he must invoke the inherent jurisdiction conferred upon the High Court and direct the principal judge, by virtue of being the most senior judge of the High Court, to empanel the full bench that would hear and decide the matter. The first applicant in the matter is the chief justice while the second applicant is the JSC.

Constitution

In the application, the applicants (chief justice and the JSC) submitted that the Judiciary was one of the three arms of government which, in terms of the Constitution, in both its judicial and administrative functions, was independent and only subject to the Constitution. It was further their submission that the office of the master of the High Court was one of the offices under the Judiciary of Eswatini. “No organ of the Kingdom has any power to enquire into and/or interfere in the affairs of the Judiciary,” contended the applicants. The CJ and the JSC are represented by Senior Lawyer Zweli Jele of Robinson Bertram while appearing for the respondents is Attorney General Sifiso Mashampu Khumalo.

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