CJ CONSULTED LSS ABOUT NEW COMMERCIAL COURT – JSC

MBABANE – The JSC says the Commercial Court has been established in accordance with the constitution after necessary consultations.  

This comes after the Law Society of Swaziland (LSS) questioned the constitutionality of the newly-established Commercial Court. According to the Judicial Service Commission (JSC), the president of the LSS was allegedly asked by the chief justice (CJ), Bheki Maphalala, to make written submissions but he allegedly did not do so. The LSS, which is one of the stakeholders of note in the establishment of the Commercial Court, said they were not consulted as provided for in the Constitution when the court was established.

On October 7, 2021, the CJ issued a practice directive in which he detailed how the Commercial Court would operate. The Commercial Court is housed at the Royal Science and Technology Park at Nokwane. In establishing the Commercial Court, Section 150(6) of the Constitution provides that there shall be such divisions of the High Court, consisting of such number of justices respectively as the chief justice may determine after consultation with the minister responsible for justice and the president of the law society. The Commercial Court is a division of the High Court.

Invited

In a press statement, Acting JSC Secretary Siphiwo Masuku said on March 11, 2022, CJ Maphalala consulted with members of the LSS in his chambers and invited them to make contributions on the establishment of the court. “Again, on the last week of March 2022, a further consultation was held between the chief justice and the president of the Law Society where the chief justice reminded the president to make contributions. However, the president did not make any written submissions or any input as requested by the chief justice,” said Masuku. The acting JSC secretary said it was important to understand that legally, consultation was an administrative concept and did not mean to seek approval.

“Accordingly, the Commercial Court has been established in accordance with the Constitution after necessary consultations were done. Be that as it may, the president of the Law Society is still welcome to make contributions, more so because the Commercial Court is still at the infancy stage,” reads part of the statement issued by the JSC acting secretary. In the four-page statement, Masuku recounted that in 2020, the World Bank had a meeting with the CJ, Ministry of Commerce, Industry and Trade, Ministry of Finance and the Ministry of Justice and Constitutional Affairs whereat, the bank emphasised on the importance of the Commercial Court for the ease of doing business.

Agreed

She said, it was agreed that it was imperative for the Kingdom of Eswatini to establish the Commercial Court as it would attract direct foreign investment if commercial disputes were settled expeditiously.  She said, subsequently, the Judiciary budgeted for the establishment of the Commercial Court and the minister of Justice and Constitutional Affairs was consulted and she made her own input.  Masuku further pointed out that on March 11, 2022, the CJ consulted with members of the LSS in his chambers and invited them to make contributions on the establishment of the court.

Meanwhile, in March 9, 2022, the LSS wrote to the chief justice concerning the establishment of the commercial court. The commercial court, as a division of the High Court, according the LSS, requires engagement with the law society. The letter to the cj, which was signed by the LSS President, Mangaliso Magagula, stated that the law society was not engaged when the court was established. Engagement with the LSS, said Magagula, was in terms of Section 150 (6) of the Constitution. The section states that the composition and establishment of divisions of the High Court are done by the cj in consultation with the minister of Justice and Constitutional Affairs and the president of the LSS.

“Regrettably, there has been no such consultation with the president of the law society. The views and input of the law profession have, therefore, not been sought. There is a constitutional duty to consult the law society in the establishment and composition of divisions of the High Court,” reads the letter to the CJ. The LSS president said they were requesting an opportunity to engage with the chief justice on this matter in order to avoid any controversy about the constitutionality of the establishment of the court.The Ministry of Justice and Constitutional Affairs was consulted by the cj regarding the establishment of the commercial court. This is according to the Minister of Justice and Constitutional Affairs, Pholile Shakantu.

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