REVEALED: NO GAZETTE FOR MASTER’S OFFICE PROBE

MBABANE – The absence of an instrument in the form of a gazette establishing the Judicial Commission of Inquiry into the affairs of the Master of the High Court might render its operations a nullity.

The commission, which was established by Chief Justice Bheki Maphalala on January 16, 2024, has been conducting its duties without a gazette. According to a legal expert, for the commission to be lawful and have the commissioners remunerated by government, there had to be a gazette issued. The legal expert said the lack thereof might result in all the operations of the commission nugatory and/or of no value.

Findings

The non-availability of the gazette, according to the expert, who is a senior lawyer, could also see findings and recommendation made by the commission being of no force and effect. The commission has, so far, heard six cases out of the 54 complaints pending before it. Secretary of the commission, Siphiwo Nyoni, when asked whether there was a gazette establishing it, he said: “We did send a gazette to the Office Of the Attorney General and we are still waiting for it.” It has been gathered from impeccable sources that upon the request for the issuance of the gazette, the Office of the Attorney General (AG) forwarded a correspondence to the secretary of the commission, where he raised some concerns. The correspondence, which was written on behalf of the AG by Senior Parliamentary Counsel, Wendy Ndlela, is dated January 22, 2024.

In the memorandum, the Office of the AG stated that: “We are concerned about the implications of the proposed gazette vis-a-vis the sentiments echoed in the High Court case No.906/2021, which we are aware is on appeal, you may want to appraise us on the status of the matter,” reads part of the correspondence.  The High Court case referred to in the letter by the Office of the AG, is the one where the CJ and the Judicial Service Commission (JSC) sought to interdict the 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 the now impugned judgment, Judge Ticheme Dlamini found that it would not be prudent for the CJ to empanel the bench to hear the matter as he was conflicted.

The CJ and the commission then filed an application for leave to appeal the judgment that was issued by Judge Ticheme on April 8, 2022. Supreme Court Judge Jacobus Annandale, who was sitting as designated single judge of the Supreme Court when he heard the matter, granted the CJ and the JSC leave to appeal the judgment.  He found that there were prospects of success. This means that the abovementioned matter is still pending in court. During the announcement of the commission, this publication asked the CJ to clarify what would happen to the court case. In response, he said they would see what would happen with the case, but the commission would continue executing its duties. He stated that the issue that was in court was, who had the authority to appoint a commission of inquiry. He said he appointed the commission in terms of Section 139 (5) of the Constitution. Section 139 (5) provides that:“Subject to the provisions of the Constitution, the chief justice is the head of the Judiciary and is responsible for the administration and supervision of the Judiciary.”

   Concerns

The AG, Sifiso Khumalo, when reached for comment, confirmed that his office had raised some concerns on the issue. “We are awaiting the response from the registrar of the High Court,” he said. He was responding to questions seeking to establish if the gazette had been issued. This publication had also asked him to state the reasons for the non-issuance of the instrument and if the commission was backed by any legislation to continue working without the gazette. Meanwhile, last week, the Law Society of Eswatini (LSE) caused to be issued a correspondence to the CJ, wherein it presented 22 reasons, why it felt the commission should be stopped. In the letter, the law society brought it to the attention of the CJ that the legal authority to establish a commission into the Master’s Office vested in the minister of Justice and Constitutional Affairs, being the minister with responsibility for the Judiciary and the administration of estates. According to the LES, the responsibility was assigned to the minister of Justice and Constitutional Affairs by His Majesty the King in terms of Legal Notice No.189 of 2015.

Power

The LSE contended that by appointing the commission the CJ allegedly acted beyond his legal authority or power which could not be derived from Section 139(5) of the Constitution. It was the lawyers’ argument that the minister of Justice and Constitutional Affairs was the right person to do so as per Section 3 of the Commissions of Enquiries Act of 1963. Section 3 of the Commissions of Enquiries Act provides that the function of appointing a Commission of inquiry vests in the executive (a minister of State). The commission which is headed by Supreme Court Judge Majahenkhaba Dlamini is made up of five judges. Other members of the commission are, High Court Judge Mzwandile Fakudze (deputy chairperson) Industrial Court Judge President Sifiso Nsibande. High Court Judge Maxine Langwenya, Industrial Court Judge Lorraine Hlophe and its secretary is Deputy Supreme Court Registrar Siphiwo Masuku, who is also a lawyer by profession. The commission as per its terms of reference is expected to submit its report within 90 days.

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