Africa-Press – Eswatini. The Law Society of Eswatini (LSS) has formally lodged a complaint against Chief Justice (CJ) Bheki Maphalala for allegedly committing impeachable acts of serious misbehaviour.
The complaint has been lodged in terms of Section 158•of the Constitution.
The LSS alleges that the CJ committed ‘serious misbehaviour by breaching his duty to uphold the Constitution, in the appointment of acting judges, the establishment of the commercial division of the High Court, engaging in conduct that was in breach of the Leadership Code of Conduct and engaging in conduct that violates his oath of office and judicial code of ethics’.
The complaint was submitted to the Civil Service Commission Chairman, Simanga Mamba and Minister of Justice and Constitutional Affairs, Pholile Shakantu.
LSS President, Mangaliso Magagula, requested that due process be followed in line with the requirements of Section 158 of the Constitution in addressing the complaint.
“We request that the minister (Shakantu) acts in accordance with the constitutional responsibility imposed by Section 158 of the Constitution by convening the ad hoc committee to deal with this complaint,” submitted the LLS in the complaint, which was also served to the CJ’s office yesterday.
Stating reasons why the minister and relevant authorities should act on the matter, the LLS said they could not overemphasise the importance of the rule of law, which remains the foundation and backbone of a proper and functioning society.
“It is important that the rule of law be adhered to. The complaint must be dealt with in accordance with the law. Our statutory mandate as the law society is to promote the rule of law. We cannot afford to abdicate on this critical responsibility, which is imposed on us by the laws of the country,” the LSS said.
The law society further states that it had been witnessing erosion of the rule of law and public confidence in the judicial system.
“The CJ is at the forefront of the assault to the rule of law.
His role as head of the Judiciary is that of chief custodian of law. Instead of fulfilling this important constitutional function, the CJ has consistently breached the Constitution, the law, the Judicial Code of Ethics and his oath of office. He has abused power and interfered with the administration of justice,” LSS claimed.
The society went on to claim that Maphalala has brought the Judiciary into disrepute and failed to promote and maintain proper administration of justice and the rule of law.
LSS pointed out that the public was desirous to have a functioning judicial system that promotes the proper administration of justice and the rule of law.
“The serious misbehaviour of the chief justice cannot be ignored. The complaint must be processed and dealt with according to law. This is important to restore the respect and dignity of the courts and the judicial system for which public order is dependent. Investors will only have confidence in a country where the rule of law reigns supreme.
appointment
The society further stated that the CJ’s appointment of acting judges on a one month basis was allegedly an abuse of power to manipulate judicial decision-making.
The LSS in its complaint also alleged that Maphalala used the acting judges to deal with certain matters on which he sought to exercise control.
It was claimed that the acting judges were rendered amenable to manipulation and to being loyal and beholden to the CJ as their patron upon whom they depend for their ongoing appointment and reappointment.
“This creates an environment where the judges and even legal practitioners are vulnerable to conduct in compromise of integrity, honesty and impartiality, an environment which the Constitution seeks to avoid,” claimed the LSS.
Further, the law society said the appointment of acting judges every month was not necessary and could not be justified. “It is an abuse of taxpayers’ money. This is an abuse of office by the chief justice and is conduct that is detrimental to the public good and good governance and is likely to lead to corruption in public affairs.
It is conduct that is inconsistent with the Leadership Code of Conduct of the Constitution, Section 239(d),” the LSS submitted. The society went on to state that the appointment of acting judges by Maphalala in the manner in which it gets done allegedly gave rise to a conflict of interest.
They claimed that it violates the leadership code of conduct with regard to conflict of interest.
LSS said section 240 of the Constitution provides that a person who holds the position of justice of the superior court of Judicature, should not engage in conduct that was likely to compromise the honesty, impartiality and integrity of that officer, lead to corruption in public affairs, or which was detrimental to the public good or welfare or good governance.
“The conduct of the chief justice is inconsistent with the requirements specified in Section 240 of the Constitution and is a breach of the Constitution and his duty to uphold the Constitution. It violates his oath of office.
Judges employed for a month at a time with the hope of securing an appointment or reappointment for another duration or who hope for continuous one month at a time appointment are placed in a situation where they are vulnerable to partiality, lack of integrity and corruption as they may believe that for them to get such reappointments, they must pass judgments which they believe are in line with views or position of the Chief Justice,” stated LSS.
The law society acknowledged that Section 153(5) of the Constitution vests power in the chief justice to appoint acting judges.
However, they warned that this power ought to be exercised for a legitimate purpose where the exigencies of the situation so require.
The society claimed that the CJ’s appointment of acting judges was an abuse of power because it was done for an improper purpose.
“The chief justice appoints acting judges not for the purpose envisaged in the Constitution (legitimate purpose) but as a means of establishing patronage in the legal fraternity and the Judiciary, a situation which makes it possible for him to manipulate decisions and thought in the legal fraternity and the Judiciary,” alleged LSS.
It was added that Maphalala allegedly justified the acting appointments by using a non-existent backlog of cases as an excuse for making acting appointments.
“In truth, the CJ uses the acting appointments as a tool for patronage and keeping some members of the legal profession loyal and beholden to him.
“The chief justice does this without regard to the prudent use of resources.
“Instead of using resources prudently to fix the crumbling infrastructure in the courts around the country, the chief justice opts to use those resources to employ on an acting basis, judges who do not even have the resources to work with and cases to deal with.
This results in the permanent judges not being allocated cases by the chief justice who allocates the cases to acting judges.
“The country now has more judicial officers per capita taking into account the population it serves,” added LSS.
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