SWAZI OBSERVER STATEMENTS HIGHLY CONTEMPTUOUS - JSC

MBABANE – The JSC says the statements that have been published by the Swazi Observer are highly contemptuous.
JSC is the Judicial Service Commission.

The JSC was responding to  articles which were carried by the  newspaper where it was alleged that the chief justice (CJ) and  two judges claimed and got paid close to E300 000 each for the November 2013 Supreme Court sitting.

The two resident judges of the Supreme Court of Swaziland are Judge Bheki Maphalala and Judge Esther Ota.
It was further alleged by the publication that the claims were made at a time when the high court was not in recess and, therefore, the judges and the CJ were expected to be still in office executing their duties. In one of the articles, it was further alleged that the only time they were supposed to claim for the sitting allowance of the Supreme Court was when they had to be recalled from recess to come and attend to appeal cases.

misleading

In a statement, the JSC stated that the articles which were published by the newspaper were misleading. In the articles, the publication also scrutinised the appointment of Judge Mpendulo Simelane.
 The JSC has since warned organisations and members of the public that it was inappropriate for anyone to comment on the pending contempt of court proceedings at this stage.
The commission further stated that contempt of court in this jurisdiction was one of the most serious offences against the administration of justice.
“It is for that reason that it is not protected as a right of freedom of expression under Section 24(3) (b) (iii) of the Constitution. On the contrary, this section plainly provides a limitation to freedom of expression in order to maintain the authority, dignity and independence of the courts. We observe that in the United States of America, the offence of contempt of court was abolished in the case of Bridges vs State of California. It will be seen, therefore, that those who seek to copy the American system on this point are misguided,” stated the JSC.
The JSC said in this jurisdiction, freedom of expression was subject to respect for other people’s rights and it was not absolute as the progressive organisations and other like-minded persons seem to suggest. Responding to the articles, the JSC stated that the chief justice and the two resident judges of the Supreme Court are entitled to receive both their salaries as well as allowances in discharging their duties in the Supreme Court.

The commission further stated that in the case of the chief justice, his contract provides for payment of both salary and sitting allowances.
 “The resident judges of the Supreme Court are legally entitled to sitting allowances and no irregularity is being committed by the judiciary in this regard. Since time immemorial, resident and non – resident judges of the Supreme Court have lawfully been paid the said allowances. It is a benefit which, in terms of the constitution cannot be taken away from them,” reads part of the statement.
The JSC further stated that Section 141(6) of the Constitution provides that the salary, allowances, privileges and rights in respect of leave of absence, gratuity, pension and other conditions of service of a Judge of the Supreme Court shall not be varied to the disadvantage of that judge.

The commission also stated that it was common cause that the resident judges of the Supreme Court had been appointed by the CJ to sit at the High Court in terms of Section 150(1) (c) of the Constitution due to the shortage of High Court judges in dealing with the backlog of cases.
“This does not make them High Court judges but they retain their status of Supreme Court judges. It is, therefore, lawful that these judges receive both salaries as well as sitting allowances in discharging their duties in the Supreme Court,” reads part of the statement.

comprises

According to the statement by the JSC, in terms of the Constitution, the Supreme Court comprises the CJ and “not less than four other justices of the Supreme Court.”
“High Court Judges are, therefore, not judges of the Supreme Court in terms of the Constitution; hence, they cannot demand, as of right, to sit in the Supreme Court. It is, therefore, misleading, misconceived and mischievous for the Swazi Observer Newspaper to insinuate that resident judges of the Supreme Court should rotate with judges of the High Court,” stated the JSC secretary Lorraine Hlophe in the statement.
The JSC secretary further stated that resident judges of the Supreme Court sit together with non-resident judges during the Supreme Court sessions; hence it would be inconceivable and mischievous that they would be remunerated differently when discharging the same duties.

“Similarly, the chief justice, as head of the judiciary, has the power to determine not only the two sessions of the Supreme Court but special sittings of the Supreme Court in accordance with Section 142 of the Constitution as well as the Court of Appeal Act,” stated the commission in the statement.

The commission also stated that Section 2 of the Legal Notice No.177/2013 dealing with the conditions of service of the superior courts retains the status quo and provides as follows: “without prejudice to any other benefit conferred by any law, the holder of an office specified in the First and Second schedule shall be paid not less than a salary or allowance or both (as the case may be) specified in relation to the holder, in the First and Second schedule.”

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