GOVT FILES PHASE II APPEAL: NATCOM: RULING BIASED AS CJ’S COP WIFE TO BENEFIT

MBABANE – The National Commissioner of Police, Vusi Masango, alleges that there is an appearance of bias in the Supreme Court’s Phase II judgment.

The concern stems from the fact that Chief Justice (CJ) Bheki Maphalala, who is one of the Supreme Court judges who presided over the matter, is married to a police officer, who stands to derive a financial benefit from the order made by the court. The wife in question is Constable Innocentia Tsabedze, who is a junior police officer, and ‘she stands to make financial gain from the directory order, which had not been prayed for and for which no notice was given’. On November 29, 2024, the Supreme Court found that Circular No.2 of 2014 (Phase II Restructuring of the Royal Eswatini Police Service and His Majesty’s Correctional Services) is binding to the parties. The court directed that government should comply with, and honour its commitment and undertaking as contained in the circular within a reasonable time.

Increases

Circular No.2 of 2014 makes provision for immediate salary increases for senior officers in both the police and Correctional Services in terms of Phase I. Phase II was to benefit junior officers. However, only Phase I was implemented. The Supreme Court also ordered that the intended disciplinary proceedings arising from or pertaining to Circular No.2 of 2014 and delivery of the petition in respect of terms of service are unlawful and shall not proceed.The matter was heard by the CJ, together with judges Phesheya Dlamini, Sabelo Matsebula, Mbutfo Mamba and Magriet van der Walt.

The Royal Eswatini Police Service (REPS) has filed an application to review, correct and set aside the judgment of the Supreme Court. REPS also wants the court to stay the execution of the order of the Supreme Court, pending the finalisation of the review application.  The police service further prayed that the High Court order of March 21, 2024, which stated that marching to the Prime Minister’s Office is clearly a demonstration, be reinstated. According to the national commissioner, a reasonable person who knows that a close family member of a judge stands to make a pecuniary benefit from the order which the judge made, would reasonably apprehend bias on the part of the judge.

“This apprehension of bias taints the entire appeal and renders it a nullity. It is a manifest miscarriage of justice for a judge to make an order which will financially benefit a member of his family,” said Masango. The veracity of these allegations is still to be tested in court. The Royal Eswatini Police Staff Association (REPOSA) and the Eswatini Correctional Services Staff Association are yet to file their answering papers. Masango also argued that there was no relief founded on the Circular No.2 of 2014, which was before the High Court. He said REPOSA did not seek a mandatory order, both in the High Court and on appeal, directing compliance with Circular No.2 of 2014.

Conclusion

According to Masango, in this case, the duty of the original Supreme Court bench was to ascertain whether the full bench of the High Court reached the correct conclusion on the case before it. Secondly, he said REPOSA did not seek an order, both in the High Court and on appeal, permanently staying intended disciplinary proceedings arising from the circular. He told the court that the principal secretary (PS) in the Ministry of Public Service issued Establishment Circular No.2 of 2014. This ministry is responsible for the implementation of the circular, he said.

The PS, argued Masango, was not a party to the proceedings, both at the High Court and on appeal. He said, despite this, the original bench made an order which engages the responsibility of the Ministry of Public Service. “If the present respondents (REPOSA and Eswatini Correctional Services Staff Association) had prayed for the implementation of Circular No.2 of 2014, the principal secretary in the Ministry of Public Service would have placed his ministry’s version to the court.  “Suffice to say, the version of the ministry is that the second phase of the restructuring was implemented in October 2022 already. The Supreme Court effectively took its eyes off the ball and red-carded a spectator,” submitted Masango.

Exceptional

He submitted that it is an exceptional circumstance resulting in the alleged miscarriage of justice for the Supreme Court to make an order on an issue which did not have to be determined as it was not prayed for and the issue engages the mandate of persons who were not before court. The national commissioner stated that he believes that the Supreme Court has the discretion to raise an issue, which was not before the High Court and which the parties have not raised, of its own accord. In the exercise of this discretion, Masango said the court is obliged to give the parties notice of the issue it intends to raise and afford them an adequate opportunity to deal with the issue. He said this is an obligation imposed on the court by the constitutional right to a fair hearing, which all litigants are entitled to.  He pointed out that Chapter III of the Constitution, where the right to a fair hearing is located, expressly binds the Judiciary.

“In the case at hand, the court did not give the applicants notice of the issue concerning relief based on the circular. The issue was raised in court during arguments when the lawyers were on their feet. “The applicants were taken by surprise to be confronted with an issue which did not arise from the notice of appeal and the pleadings which were filed in the court below. By so doing, the court infringed the applicants’ fair hearing right,” said Masango. According to the national commissioner, in relation to the issues which were not before the High Court, the original bench sought facts from the practitioners, while they were on their feet arguing the case.

“I am advised and verily believe that in application proceedings, the evidence is in the affidavits. It is not adduced by practitioners in response to questions from the court. The applicants’ legal representatives repeatedly said they had no instructions on the factual matters which the court was raising with them. “It is an exceptional circumstance resulting in a failure of justice for the Supreme Court not to give notice to the applicants of issues it wants to determine, but which do not arise from the notice of appeal and from issues which were before the High Court,” Masango further submitted.

He argued that the constitutional right to a fair hearing includes the right to have a dispute determined by an impartial court. This means a court free from the appearance of bias, he said.
“The chief justice was a member of the original bench which decided the appeal. On the face of the judgment, the chief justice was one of its co-scribes. “The chief justice’s wife, 5444 Constable Innocentia Mdi Tsabedze, is a junior police officer who stands to make financial gain from the directory order which had not been prayed for and for which no notice was given,” argued Masango. The matter will be heard on a date yet to be fixed by the registrar of the Supreme Court.

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