NON-APPOINTMENT OF JSC: JUDICIAL OFFICERS FRUSTRATED

MBABANE – The non-appointment of the Judicial Service Commission (JSC) is having a damaging effect on the country’s Judiciary.

Already, some judicial officers who have been working on contract are frustrated as they have claimed to be living under uncertainty because they do not know if their contracts will be renewed or not. The affected judicial officers include those employed as magistrates, albeit on an acting basis, some of whom were appointed in the years 2018, 2019 and 2020.
Some of them have confided to this publication that their contracts will soon elapse and they do not know if they will be renewed since there is no JSC in office.

Others said they no longer know whether to report for duty or stay at home since their contracts have already elapsed. In particular, the concerned judicial officers said they are worried that in the event they continue working without renewed contracts, the legality of the judgments they issue could be questioned or challenged. It has been gathered that in previous years, some of the judicial officers, like magistrates, were granted contracts of about five months, but there has been an improvement in recent years.

This is because the contracts now run for up to 12 months. Some of the judicial officers said the trend has been that their contracts would be renewed on time and they would continue working without a problem after receiving an email as a notification. Some of the judicial officers who spoke on condition of anonymity said they expected that the JSC would be appointed together with the traditional advisory councils (emabandla), who were announced in May by the Attorney General (AG) Chief Mashampu Khumalo, something which, however, did not happen.

Appoint or dissolve

It should be noted, however, that there is no specific law that stipulates a date on which the King must appoint or dissolve emabandla, but it has been a trend over the years that a new Parliament worked with newly-appointed members of the different traditional councils and committees (emabandla ekweluleka) When announcing other emabandla in May this year, the AG said Boards and commissions that were not mentioned will continue to exist under the legal notice extending their term of office until further notice.The judicial officers said the impact of the non-appointment of the JSC had serious repercussions not only on them, but even the inmates whose cases they deal with. They said even before they decided whether to stay at home and await the day they will receive communication of their contract renewal, they are concerned about the inmates whose cases they are handling.

Continue or be restarted

They said in the event there is continued delay in the renewal of their contracts and they do not report for duty, the cases of the inmates will stall and there will be a need to determine if they will continue or be restarted once things have normalised or new magistrates are brought in. It has been gathered that judicial officers affected include those stationed at the Master’s Office and Small Claims Court. It has been alleged that in one of the Small Claims Courts, about three commissioners whose contracts elapsed have stopped reporting for duty, leaving only the one who works on a permanent basis.

“We also need a new JSC, so that it can deal with the unfair labour practice of hiring us on contract for years. You cannot be acting for over three years,” one of the judicial officers said.
In terms of the law, the JSC is supposed to be composed of six members and these include the chief justice (CJ) and the chairman of the Civil Service Commission (CSC). It has been gathered that the term of office for the other four members ended months, which means that currently there is only CJ Bheki Maphalala and CSC Chairman Simanga Mamba who, it must be stated, are known as permanent members.

The members whose term of office within the JC ended are Bongani Sydney Dlamini, who was appointed a judge, Sibongile Zondi, Chakazile Dlamini and Chief Mgebiseni Dlamini.
Worth noting is that already, the issue of the non-appointment of the JSC is set to be raised in Parliament. According to a Notice Paper 29/2024 for the House of assembly, Mbabane East Member of Parliament (MP) Welcome Dlamini is set to move a motion calling for the Minister of Justice and Constitutional Affairs Prince Simelane to explain how the Judiciary has been able to carry out its functions in the absence of the JSC.

According to the notice paper, the MP will also call for the minister to include how judges, magistrates and court registrars have been appointed to either hold or act in their positions in the absence of the JSC. Also, the minister will be asked to state how government has been kept informed on the administration of justice as provided for in Section 160 (f) of the Constitution in the absence of the JSC.

Meanwhile, with the appointing authority being His Majesty the King, this publication sought a comment from the King’s Office. Director of Communications Percy Simelane said there has actually been no calendar date for any appointments of boards and commissions such as the JSC. Simelane said it is, therefore, difficult to get to know when the JSC will be appointed.
“The consideration of deserving candidates is done quietly behind closed doors. It is only the announcement that is done publicly. We are aware of the need to fill manpower gaps within the Judiciary, but we appeal for patience one more time,” said Percy. An effort to obtain a comment from the minister was not successful, as his cellphone number rang unanswered for the better part of the day. The minister is on record having said in Parliament that the Eswatini Judiciary has many challenges, including shortage of courts, operating with only 25 judges and 15 magistrates.

Need for a dialogue

In particular, the prince said there is a need for a dialogue to be initiated, so that the three arms of government could engage, especially regarding the separation of powers. The minister explained that the issue of the separation of powers made it difficult to solve some of the problems relayed to him. An effort was also made to get a comment from the CJ, but his cellphone number rang unanswered when called on both Friday and yesterday. Meanwhile, Law Society of Swaziland (LSS) Secretary Charity Simelane said the entity trusts the process and recognise that there is a need to balance the appointments with the necessity to ensure that a JSC that is capable of dealing with the current challenges in the Judiciary is appointed.

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