LOBAMBA – It is almost two months since the late Chief Justice (CJ), Bheki Maphalala passed on and already, confusion is reigning supreme regarding his successor.
Yesterday, it was alleged in Parliament that the non-appointment of the acting CJ has created four camps, each with its candidate of who should take over the hot seat. The situation was described as one that has caused an untenable and confusing situation.
As a result, Minister for Justice and Constitutional Affairs, Prince Simelane was asked to pronounce the current position on the matter. This happened during the portfolio committee debate of the ministry’s second quarter performance report. It was Mbabane East MP, Welcome Dlamini who put the minister on the spot over the issue by demanding clarity on who the acting CJ was.
Dlamini said the country had lost a patriot in Maphalala, acknowledging that although there might have been disagreements with some of his decisions, his contribution to the country and the Judiciary could not be overlooked.
He said the death of the CJ had left a significant gap that needed to be addressed to ensure that the Judiciary continued operating effectively.
The MP questioned why government had not publicly clarified the arrangements for the leadership of the Judiciary more than a month after Maphalala’s passing. He alleged that there were about four camps within the Judiciary, with different judges reportedly advancing claims to qualify as acting CJ.
Dlamini called on the minister to seek clarification from the Attorney General’s Office on the interpretation of Section 153 of the Constitution, particularly the provision relating to the most senior judge of the Supreme Court assuming the duties of chief justice when the substantive office-holder is unable to perform those duties.
According to Dlamini, the constitutional provision appeared to provide for an automatic arrangement, without requiring consultation with or approval from the appointing authority.
He said the confusion seemed to stem from disagreements over how seniority among the judges should be determined. The MP explained that different judges were reportedly relying on different considerations, including age, the date of their appointment to the High Court and the order in which they were appointed to the Supreme Court.
He said some considered themselves senior because they were older, while others based their claims on having been appointed to the High Court first.
Others reportedly argued that their seniority should be determined by the order in which they joined the Supreme Court. Dlamini said these competing interpretations made it necessary for the attorney general to provide a clear legal position on who qualified to act as chief justice.
He further questioned who was currently overseeing the performance of judges in the absence of a substantive chief justice. He argued that the registrar of the Supreme Court could not be expected to supervise judges and direct their work, as the judges might not regard the registrar as having the authority to do so. Dlamini warned that the lack of clarity and government’s silence on the matter were creating uncertainty within the Judiciary. “The silence is causing an untenable and uncertain situation,” he said. The MP also raised the issue of compensation for the family of the late CJ following the burning of his property during the political unrest. He said the matter had previously been discussed with the minister for Finance, who indicated that it should be handled by the Deputy Prime Minister’s Office.
Dlamini therefore appealed to Prince Simelane to follow up on the matter to ensure that the family of the late CJ was compensated for the loss.
In response, the minister distanced himself from the appointment of an acting CJ, explaining that the responsibility did not fall under his ministry.
The minister said the matter was within the mandate of the Judicial Service Commission (JSC), which is responsible for dealing with matters relating to the appointment of judicial office-holders.
