MASTER’S PROBE TO CONTINUE UNTIL END - CJ

MBABANE – While the Justice Minister denies knowledge of the Master’s Office probe, lawyers raise concerns and others mumble, the chief justice is unmoved.

Chief Justice (CJ) Bheki Maphalala yesterday issued a statement telling all and sundry that the probe into allegations of impropriety, maladministration, abuse of power and incidental matters at the Office of the Master of the High Court will go ahead until it is finalised. In fact, Maphalala said no minister of the State should abrogate to himself the power of administrative control and supervision over the Judiciary as such conduct is unconstitutional.

Assistance

The Constitution, according to Maphalala, allowed the Judiciary to seek assistance from the other arms of government where necessary, ‘like we do with the Ministry of Justice and Constitutional Affairs from time to time’.
He said this was the case because they could not sit in Cabinet or Parliament, but that did not in any way affect the independence of the Judiciary.

The CJ established the Judicial Commission of Inquiry on January 16, 2023, in terms of Section 139 (5) of the Constitution (5), which provides that, subject to the provisions of this Constitution, the chief justice is the head of the Judiciary and is responsible for the administration and supervision of the Judiciary.

Appointment

The commission’s Chairperson is Judge Majahenkhaba Dlamini. The other commissioners are Judge President Sifiso Nsibande, Judge Mzwandile Fakudze, Judge Maxine Langwenya and Judge Lorraine Hlophe. There is still no gazette for the commission, let alone the appointment of the Secretary, Siphiwo Nyoni. The commission has already heard eight complaints from six women and two men. It has also considered written submissions, mainly on Thursdays and Fridays.

After the commission was established by Maphalala, the Law Society of Eswatini (LSE) was quick to act. It served the chief justice with 22 complaints about the establishment of the commission. Their complaint, among others, was that it was not the prerogative of the CJ to establish the Commission of Inquiry, but it was the preserve of the minister of Justice and Constitutional Affairs as per the Commissions of Inquiry Act of 1963.

Section 3 (1) of the Commissions of Inquiry Act stipulates that; “Any minister may, by notice in the gazette, issue a commission appointing one or more commissioners and may therein provide that one or more members shall constitute a quorum for the purpose of the inquiry.” According to the LSE, 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, titled ‘Assignment of Responsibilities to Ministers’.  

Conferred

The lawyers highlighted that in doing so, the King was exercising powers conferred on him by Section 70 of the Constitution. The LSE alleged that Maphalala had exceeded his jurisdiction since the appointment of commissions of inquiry was solely preserved for the Executive arm of government.

On January 25, 2023, the Times of Eswatini reported that Simelane expressed concern and shock over the establishment of the commission. The minister said his ministry was not aware of the probe. With the CJ insisting that the commission would carry on until the end, the jury is still out on who is the rightful party to establish the Commission of Inquiry.

Enshrined

In his statement, Maphalala stated that the independence of the Judiciary as a third arm of government and as entrenched and enshrined in Section 141 of the Constitution should be respected by all. According Section 141 (1), in the exercise of the judicial power of Swaziland, the Judiciary, in both its judicial and administrative functions, including financial administration, shall be independent and subject only to this Constitution and shall not be subject to the control or direction of any person or authority.

Subsection 2 states that neither the Crown nor Parliament nor any person acting under the authority of the Crown or Parliament nor any person whatsoever shall interfere with Judges or judicial officers or other persons exercising judicial power, in the exercise of their judicial functions. “The Judicial Commission of Inquiry into the affairs of the Master of the High Court will continue as announced by the chief justice until it has finalised its mandate.

“Section 2 of the Constitution provides for the supremacy clause that the constitution is the supreme law of the land.
“Accordingly, the independence of the Judiciary as a third arm of government and as entrenched and enshrined in Section 141 of the constitution should be respected by all.

Power

“This constitutional provision provides inter alia that in the exercise of judicial power of Eswatini. “The Judiciary in both its judicial and administrative functions, including financial administration, shall be independent and subject only to the Constitution and shall not be subject to the control or direction of any person or authority,” reads part of the CJ’s statement.

Maphalala said Section 141 also provides that all organs or agencies of the Crown shall give to the courts such assistance as the courts may reasonably required to protect the independence, dignity and effectiveness of the courts under the constitution.

It further provides that the Judiciary shall keep its own finances and administer its own affairs and may deal directly with the ministry responsible for finance or any other person in relation to its finance or affairs. The law society called upon the CJ to reconsider his decision to establish the inquiry, disband and defer it to a lawful authority.
The lawyers informed Maphalala that the organs that were empowered to investigate the irregularities in the Master’s Office had shown willingness to set up an investigation.

Correspondence

“Ironically, a parliamentary investigation into the Master’s Office was stopped through an application instituted by the chief justice,” reads part of the correspondence that was also copied to the attorney general. The law society brought it to the attention of the CJ that the administration of estates, as per Legal Notice No.189 of 2015, fell under the minister of Justice and Constitutional Affairs.

This legal notice states where the Master’s Office falls under. According to the notice annexed to the correspondence, the Master’s Office is the responsibility of the minister of Justice and Constitution Affairs.

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