MBABANE – Law Society of Eswatini (LSE) President Mangaliso Magagula says the registrar of the High Court’s attempt to intervene in his court case extends beyond her legally defined administrative functions.

Magagula was responding to an application filed by the registrar, who is seeking to intervene in the matter where Magagula is challenging his detention at Sidwashini Correctional Services. The president of the Law Society wants the High Court to declare his detention at the Correctional facility invalid.

He instituted the proceedings while serving a sentence of 120 days, which was meted by Judge Titus Mlangeni on June 5, 2025. He was released by Judge Mumcy Dlamini after spending eight days behind bars. His release is pending the finalisation of the challenge of his detention.

There are proceedings instituted by the registrar, who took the commissioner general to court after Magagula’s initial release on May 31, 2025, when he was remanded in custody pending sentencing. He filed an appeal on the same day, May 30, 2025, when he was convicted and was released a day later.

In opposing the registrar’s application to join the proceedings of his challenge of his detention, Magagula argued that, since the registrar’s attempt to join the matter allegedly extends beyond her defined functions, she is reportedly breaching fundamental principles of justice, good governance and the separation of powers.

Magagula’s main assertion is that the Registrar’s Office is strictly administrative, designed to ensure the efficient and effective operation of the High Court. Her functions, as outlined in the affidavit, include the issuance of court processes, warrants of liberation for convicted persons (though Magagula clarifies this is not universal), preparing court rolls for motion courts and sessions, serving as a crucial liaison between attorneys and judges, taxing bills of costs and managing court records.

Supervision

The registrar, he submitted, also serves as a sheriff of the High Court. According to Magagula, these roles are exercised under the direction and supervision of the chief justice, emphasising an ancillary, rather than an initiating, legal capacity.

The applicant (Magagula) vigorously maintains that the registrar is a ‘creature of statute’, meaning her authority is exclusively derived from specific legal frameworks such as the High Court Act No. 20 of 1954, the High Court Rules, the Sheriff’s Act No. 17 of 1902, and the Criminal Procedure and Evidence Act No. 67 of 1938.

Magagula argues that there is nothing directly or indirectly that gives the registrar the power to institute proceedings. The veracity of these allegations is still to be tested in court. Magagula is represented by Sabela Dlamini, while Zweli Jele of Robinson Bertram appears for the registrar.

The LSE president told the court that any action, including the current intervention, that falls outside these expressly granted powers is deemed ultra vires (beyond her legal authority), unlawful and invalid, he told the court.

A noteworthy pillar of Magagula’s argument revolves around the constitutional principle of the separation of powers. He highlights the inherent irony of an official within the Judiciary—whose constitutional mandate is solely to adjudicate disputes impartially—attempting to become a party to litigation.

This, he contends, creates an untenable situation where one arm of government (the Judiciary, through its administrative officer) is effectively ‘suing another arm of government’, including the attorney general, who is the State’s principal legal advisor.

Proceedings

Section 77(5)(c) of the Constitution explicitly vests the attorney general with the ‘exclusive mandate to represent government in courts or in any legal proceedings to which government is a party’. Magagula argues that the Registrar’s intervention unlawfully usurps this constitutionally defined executive function.

Furthermore, the applicant asserts that the registrar lacks locus standi in judicio, or the legal standing, to intervene, as she has no direct and substantial interest in the outcome of the primary case that could prejudice her. The matter will be heard on Wednesday.

… Law Society can’t intervene – registrar

MBABANE – The High Court registrar is contending that the Law Society of Eswatini (LSE) lacks the requisite mandate from its membership to join the legal proceedings involving the LSE president.

The LSE is seeking to intervene in ongoing proceedings concerning the release of its President, Mangaliso Magagula, from prison. The registrar’s primary contention is that the Law Society lacks the requisite mandate from its membership to initiate or join these legal proceedings.

The legal dispute has seen the Law Society seeking to be admitted as an intervening party or amicus curiae (friend of the court). This move follows Magagula’s release from Sidwashini Correctional Services on May 31, 2025, after being remanded to custody pending sentencing on June 5, 2025 as he had filed an appeal subsequent to his conviction.

In her answering affidavit, the Registrar, Nosipho Mabuza, disputes the authority of Kwanele Magagula, the Secretary General of the LSE, to institute these legal proceedings and depose to the affidavit on behalf of a statutory body. She asserts that the Law Society, established under the Legal Practitioners Act of 1964, derives its powers from this enabling statute.

Critically, the Act, she argues, does not confer authority on the secretary general to initiate proceedings for the Law Society Council without a formal resolution from either the council itself or, at best, the law society’s general membership.

… questions legal mandate of Robinson Bertram

MBABANE – Mangaliso Magagula contends that Robinson Bertram law firm’s engagement to represent the registrar of the High Court is unlawful due to a fundamental lack of mandate from government.

Magagula’s submissions highlight Section 77(5)(c) of the Constitution, which explicitly grants the attorney general the exclusive mandate to represent the government in courts or in any legal proceedings to which the government is a party.

The president of the Law Society of Eswatini argues that the registrar of the High Court, a civil servant and part of the Judiciary (an arm of government), cannot bypass this constitutional provision by independently initiating proceedings or appointing private attorneys on behalf of the government. This, it is asserted, amounts to an unlawful usurpation of the attorney general’s constitutionally defined executive function.

Furthermore, the challenge invokes Section 77(6) of the Constitution, which specifies that while the attorney general may delegate such powers to a subordinate officer, this must occur under ‘express or general instructions’.

Magagula states there is no indication that the attorney general authorised either the registrar of the High Court or the registrar of the Supreme Court (who allegedly authorised the High Court registrar) to institute these proceedings or appoint private lawyers.

Delegate powers

The legal principle of delegatus non potest delegare (one cannot delegate powers she does not have) is also cited, suggesting that if the registrar of the Supreme Court lacked the power to institute proceedings, she could not lawfully delegate such authority. The veracity of these allegations is yet to be tested in court.

A particular point of contention is the alleged violation of the Eswatini Public Procurement Act No. 7 of 2011. Magagula maintains that the engagement of private attorneys by government officials, including those within the Judiciary, constitutes a ‘procurement of services’ that is subject to this Act.

Section 4 of the Act dictates that it applies to all public procurement of goods, works and services by government bodies unless specifically exempted, and competitive bidding processes are typically required. The applicant argues that the registrar’s failure to adhere to the Public Procurement Act renders Robinson Bertram’s appointment unlawful, potentially disqualifying the firm from acting on behalf of the Registrar’s Office.

Magagula further expresses concern about suffering prejudice by having to defend proceedings that may not have been properly authorised by the government and are prosecuted by attorneys potentially without a legitimate mandate. He also raises the issue of costs; if costs were awarded against the government, enforcing such an order could prove difficult if the institution of the proceedings was, in fact, unauthorised. The applicant maintains that for Robinson Bertram to continue representing the registrar, they must satisfy the court that the government genuinely authorised these proceedings.

Magagula went on to argue that allowing a court official to initiate litigation fundamentally compromises the Judiciary’s neutral role and creates an untenable conflict of interest.

Litigant

He contends that the registrar, as an integral part of the judicial arm of government, is expected to maintain a neutral stance, overseeing the administrative functions of the court without a vested interest in the outcome of specific cases. He argued that when the registrar attempts to intervene as a litigant, especially against another government department such as His Majesty’s Correctional Services or the attorney general, it creates a perceived (and actual) blurring of lines that directly challenges the constitutional delineation of powers.

Furthermore, he asserts that if the Registrar becomes a litigant in proceedings she oversees administratively, her impartiality is, or may be seen to be, compromised. This directly impacts the right to a fair hearing, enshrined in Section 21 of the Constitution, which demands that justice not only be done but also be seen to be done at every stage of litigation. The applicant points to the registrar’s alleged selective intervention – choosing to act in this instance while not intervening in earlier proceedings, where Magagula’s constitutional rights were purportedly violated – as evidence of a concerning bias that further erodes the appearance of neutrality.