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LAWYERS LODGE FORMAL COMPLAINT, WANT CJ OUT

21/12/2022 14:55:00 Mbongiseni Ndzimandze

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MBABANE – The Law Society of Swaziland (LSS) has lodged a formal complaint against Chief Justice (CJ), Bheki Maphalala, for allegedly committing impeachable acts of serious misbehaviour.

Impeachment means to charge a public official with a crime or misconduct. In the litany of complaints which have been forwarded to the Minister of Justice and Constitutional Affairs, Pholile Shakantu, among them is one involving a female employee of the High Court. The CJ is further accused of victimisation, nepotism, exceeding power, serious misbehaviour and interfering in cases. It is also alleged that the CJ interfered with the administration of justice, violated court orders, engaged in conduct where he had conflict of interest and obstructed the course of justice. According to the LSS, the CJ’s behaviour warranted his removal from office.

Constitution

The LSS filed the complaint in terms of Section 158 of the Constitution. Section 158 talks about the removal of a justice of the Superior Court of judicature and the process to be followed therein. According to the Constitution, upon receipt of the complainant, the minister of Justice is expected to put in place an ad hoc committee to investigate the allegations. According to the LSS, the CJ allegedly abused power, breached the Leadership Code and violated his oath of office and the Judicial Code of Ethics by allegedly coercing the female employee to withdraw a complaint against him. Another complaint against the CJ is the alleged unconstitutional appointment of acting judges, which the LSS said was in contravention of Section 153(5) of the Constitution. These are allegations whose veracity is still to be tested.

“The Chief Justice has violated the Constitution by appointing acting judges for successive one-month periods. Regarding these appointments, the CJ relies on the powers conferred on him by Section 153(5) of the Constitution which grants him power, to make an acting appointment where the duration does not exceed one month, un-renewable after consultation with the JSC,” said the Law Society. According to the Law Society, by appointing acting judges on a month-by-month basis, the CJ allegedly circumvented the Constitution and renewed the appointment after the expiry of the one-month term allowed by the Constitution.

Spirit

The LSS said in this way, the CJ allegedly defeated the intention and spirit of the Constitution effectively appointing acting judges for periods longer than the duration allowed by the Constitution thereby evading the Constitution. It is alleged by the Law Society that, the power to appoint judges was controlled by the Constitution and must be exercised as provided in the Constitution. “It is no coincidence that the power to appoint judges is controlled by the Constitution. Judges play a vital role in the administration of justice. They determine the rights of citizens. The appointment of judges must be lawful and beyond reproach. Justice in the courts must be administered by properly appointed judges for the public to have confidence in the administration of justice and the decisions of the courts,” reads part of the complaint.

The lawyers continued to state that the proliferation of acting appointments of judges by the CJ allegedly in violation of the Constitution resulted in justice being administered by judges who had no ultimate accountability other than to him. “This compromises those judges’ exercise of their independent judgement in cases where they are aware of the interest or will of the chief justice. This erodes public confidence in the decisions of the courts and puts into question the validity of the judgments delivered by the judges who are irregularly appointed,” said the lawyers’ body. It alleged in the complaint that, the CJ violated the Constitution by appointing acting judges for successive one-month periods. “He does what the Constitution prohibits him from doing - making acting appointments for duration, above a month. He effectively renews the acting appointments when the Constitution says it cannot be done,” said the LSS.

The LSS cited Section 153 (5) of the Constitution, which states that: “Notwithstanding the provisions of Subsections (3) and (4), the chief justice, after consultations with the Judicial Service Commission, may make an acting appointment where the duration does not exceed one month, un-renewable. “The CJ may only make an acting appointment of a judge where the duration does not exceed a month and he cannot renew the appointment. His power extends only to making an acting appointment for one month only and that acting appointment cannot be renewed. The acting appointment can only be extended for a period not exceeding three months to enable the acting judge to deliver judgements,” said the Law Society. The extension of the acting appointment, according to the LSS, was done only to enable the acting judge to complete proceedings commenced during the one-month acting period.

The LSS went on to accuse the CJ of allegedly contravening Section 150(6) of the Constitution in establishing the commercial division of the High Court. Section 150(6) of the Constitution empowers the CJ to establish such division of the High Court as he might determine after consultation with the minister of Justice and the president of the LSS.

Consult

“The failure to consult with the Law Society deprives the Law Society of the right to be consulted in the establishment of a division of the High Court. This constitutional right and obligation of the Law Society to participate as a consultant in the establishment of a division of the High Court cannot be lawfully taken away by the Chief Justice. Yet he has done exactly that with total disregard for the Constitution,” said the Law Society. The LSS said this was detrimental to the public good and governance, and was an alleged abuse of office. The conduct of the CJ, according to the LSS, was allegedly inconsistent with his duty in terms of the Leadership Code of Conduct and would justify his removal from office. It is alleged that the CJ contravened Section 150(6) of the Constitution by establishing the commercial division of the High Court without prior consultation with the president of the Law Society as required by the Constitution.

Commission

Reached for comment, the Acting Secretary of the Judicial Service Commission (JSC) Siphiwo Masuku, asked that a questionnaire be sent to her, however,she had not responded by the time of compiling this report. When sought for comment, Communications Officer in the Ministry of Justice Nomfundo Dlamini said: “ The ministry is aware of the complainant from the Law Society, the matter is to be discussed with the Law Society.” LSS Secretary General Charity Simelane said: “The complaint was filed with the office of the minister of Justice and copied to the chairman of the Civil Service Commission. We wait for the minister of Justice to act in accordance with the Constitution and convene an ad hoc committee to deal with the complaint.” The complaint by LSS against the CJ was also circulating on social media.