ATTEMPT TO PORTRAY JUDGE AS PUDEMO MEMBER

MBABANE – The attention of the Attorney General’s Office has been drawn to an alleged smear campaign reportedly meant to blackmail Industrial Court Judge Abande Dlamini to step aside from hearing the matter of SNAT President Mbongwa Dlamini.

This is in the matter where the Swaziland National Association of Teachers (SNAT) president is seeking an interim order to stay his disciplinary hearing and for the Industrial Court to dismiss or ‘fire’ the Teaching Service Commission (TSC) and order the appointing authority to appoint new commissioners. There is an allegation that an unsubstantiated accusation portraying the judge to be a member of proscribed political entity, the People’s United Democratic Movement (PUDEMO), as well another uncorroborated claim that he is a close friend of Mbongwa will be made in open court as reasons that he should not preside over the matter.

banned

PUDEMO was proscribed as a terrorist entity in 2008 by the then Prime Minister Sibusiso Barnabas Dlamini. It was banned alongside its youth wing the Swaziland Youth Congress (SWAYOCO), Swaziland Solidarity Network (SSN) and Umbane. The Times SUNDAY has been reliably informed that on Wednesday, Mbongwa’s lawyer, Senior Attorney Lucky Howe, allegedly approached the judge in his chambers and asked him to recuse himself but the request was turned down. Howe allegedly told the judge that his client (Mbongwa) had told him that he was a close friend of the judge hence the request for recusal. However, the judge reportedly turned down the request and denied that he was Mbongwa’s friend, let alone a close one, and told Howe to file a full blown application for the recusal.

recusal

That recusal application was reportedly supposed to be filed on Thursday but that has still not happened and there has been no condition application for late filing. While the application has been pending, further allegations aimed at forcing the judge to recuse himself were made. This publication has seen correspondences between Assistant Attorney General (AAG) Mbuso Simelane and Howe in which these allegations are addressed. On Friday (June 9, 2023), Simelane wrote to Howe reminding the latter of an order that he should file the recusal application on Thursday, June 8, 2023.

condonation

Simelane confirmed in the letter that Howe had not complied with the said court order, thus the instructions given to the office of the AG were not to accept the recusal application without having sought and be granted a condonation order. Howe was reminded that it was his client Mbongwa who had sought the interim order and the lawyer was further advised that the disciplinary hearing against the SNAT president would continue if a rule nisi (court order) has not been granted. Simelane alleged that Mbongwa was hell-bent on frustrating his very own court-instituted process. “Our instructions are that inasmuch as His Lordship Justice Abande Dlamini might wish to speedily exonerate himself from the baseless and scandalous allegation that: He is a bosom friend of Mr Mbongwa Dlamini, thus he will issue a favourable judgment in support of his case despite that Mr Mbongwa Dlamini does not believe that he has any prospects of success in his case, but is just abusing the court process; That the Learned Judge is a card carrying member of PUDEMO, that we allow due court process to take place to avoid a chaotic situation to manifest itself in the administration of justice and the rule of law,” reads the assistant AG’s letter to Howe.

coerced

Simelane informed Howe that the AG’s clients were desirous of presenting evidence that the recusal application ‘is just a smear campaign meant to blackmail the honourable judge so that he may be coerced to drop this matter and any matters that come from the SNAT president when no such challenge was raised in past matters that he handled involving Mbongwa Dlamini which he dismissed’. He alleged that there was intelligence information to the effect that similar recusal applications awaited almost the entire bench of the Industrial Court in order to instil fear among the judges. “It was made clear to Judge Msimango in the contempt proceedings involving the same parties, argued on the June 5, 2023, that a similar challenge may be raised at any time against her,” the assistant AG said. Simelane then cited the words of former Chief Justice, the late Michael Ramodibedi, when he said: “tThat one day there will be an unjustified and horrendous attack on the bench by people in the labour and political spheres, seeking for the dismissal or unnecessary recusal of judges, failing which they will resort to blackmail, failing which they will report the country to the international organisations so that sanctions could be imposed on the country.”

prospects

He went on to inform Howe that the AG’s clients were also desirous to present evidence that Mbongwa allegedly worked with a certain individual when an instruction was made to teachers not to attend school. He said when the National Commissioner of Police, William Dlamini, sought clarity from him and/or to warn him about such instructions; the SNAT president allegedly rebuffed the opportunity to assist the police. Other evidence that the clients are said to be itching to present is that Mbongwa has allegedly convinced the President of NAPSAWU and SNAGAP, their members and teachers to support him for not attending work while he diligently attended to their duty stations. “Government is very much happy with both presidents and their members and teachers that are religiously attending work and get rewarded with their salaries. All other labour concerns are attended to in the joint labour forums that government and the unions are engaged in,” the assistant AG wrote.

Howe responded to Simelane’s letter by writing his own on June 9, 2023 and addressed it to Attorney General Sifiso Khumalo, to whom he stated that they would still proceed with the application for the judge to step down. He apologised to the AG for any inconvenience caused and said their instructions were that they would proceed with the application for the recusal of Judge Abande and that their reasons for seeking the recusal would appear in the application. Howe, however, refuted the ‘bosom friend’ allegation brought against Mbongwa, but did not touch on the PUDEMO membership one.

allegation

“We deny our client has ever alleged that the Justice is his bosom friend and we are not aware of any such allegation by our client in this regard,” the attorney said. He further stated: “With regard to the balance of the paragraphs in the said letter, they are noted and as and when the matter arises and come to the front we will deal with them appropriately.” Howe then expressed grave concerns regarding the language used in Simelane’s letter and requested the AG to discuss the matter with him (Simelane) in this regard. The lawyer had first apologised to the AG for any inconvenience caused by the application for recusal not being filed timeously. The lawyer claimed that Mbongwa was out of the country on national duty and as such they were not able to make the necessary arrangements for him to confirm the affidavit and sign it for purposes of the recusal. “We wish to place it on record that the application for condonation will be made as is required and we will proceed to file our application no later than Monday, the 12th on his return. In this regard, please kindly accept our apologies,” Howe said.

With regard to the contents of Simelane’s letter, he said they would not respond to the matter verbatim but a lot of issues that had been said in that correspondence left a lot to be desired.
The assistant AG responded to Howe’s letter on the same day (Friday) and said it was a ‘blatant lie’ that Mbongwa had attended to national duties, thus depriving him of an opportunity to depose to the affidavit in support of the ‘scurrilous attack on the Industrial Court judges’.

expose

“You may wish to consult the office of the Prime Minister in order to expose Mr Mbongwa about his lies,” Simelane said. He alleged that the fact of the matter was that Mbongwa had abandoned his duty station and his whereabouts were unknown to his employer for the past two weeks, up to Friday. Simelane said Mbongwa’s plea to the AG to rein in the assistant AG was a sign of desperation which must not be entertained by the AG because all that the AAG (Assistant Attorney General)  wrote was per clients instructions. “We thought that the multiple challenges of the judges to hear Mr Mbongwa’s application was per his instructions, but we are now left in doubt if indeed Mr Lucky Howe is acting on instructions to even put to paper such shocking plea to the AG. The AAG acts on instructions for the record,” Simelane responded. He said Mbongwa must attend school and stop destroying the children future.
The AAG said the SNAT president was entitled to attend union activities so long as he reported to his immediate supervisor,  instead of flashing Judge Msimango’s judgment that he may disappear as and when he felt like, thereby compelling the employer to search for him and thereafter consult him before cessation of his salary.

apology

Regarding the apology extended over the late filing, Simelane said it was nothing pulling wool over the eyes because ‘they filed an urgent application and despite our attempts as much as possible that the matter be heard so that his gripe can be determined with the urgency he deserves, Mr Mbongwa is blocking that process’. Adding, Simelane said the condonation application will be opposed per their instructions since it was allegedly an abuse of court process and an unjustified attack on the bench. When Howe was contacted, he pleaded for understanding and said he ‘cannot discuss what is said in chambers’. Simelane and Judge Abande could not be reached for comment as their mobile phones rang without any responses.
WhatsApp messages were sent to them but these too were not responded to.

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