Africa-Press – Eswatini. Minister of Justice and Constitutional Affairs Pholile Shakantu has confirmed receipt of the Law Society of Eswatini’s complaint on Chief Justice Bheki Maphalala’s alleged committal of impeachable acts of serious misbehaviour.
In terms of Section 158 of the Constitution, which was used as basis of filing the complaint, receipt by the minister paves way for the convening of an ad hoc committee that might recommend to His Majesty King Mswati III for an investigation to be undertaken by the Judicial Service Commission (JSC).
The Constitution defines the ‘ad hoc committee’ as a committee made up of the minister responsible for justice, in this case being Shakantu, and Chairman of the Civil Service Commission (CSC), Simanga Mamba and President of the Law Society, a position currently held by Mangaliso Magagula.
“I confirm that my office has received the complaint from the law society,” briefly said Shakantu yesterday. However, she could not provide precise details as to what would transpire going forward as the Constitution mandates her to be part of the ad hoc committee.
The law society complained that the chief justice allegedly 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 Constitution dictates that a Justice of the Superior Court of Judicature may only be removed from office in accordance with provisions of Section 158.
It further states that a justice of a superior court shall not be removed from office except for stated serious misbehaviour or inability to perform the functions of office arising from infirmity of body or mind.
Section 158, sub-section (3) reads; “where the King acting on the advice of an ad hoc committee in the case of the chief justice, and on the advice of the chief justice in the case of any Justice of a Superior Court, considers that the question of removing from office the chief justice or a justice on any ground stated in sub-section (2) ought to be investigated, the King shall refer the matter to the Judicial Service Commission for investigation.”
The Constitution states that the commission would enquire into the matter and recommend to the King whether the chief justice should be removed from office.
“Notwithstanding any provision of this Constitution, the King shall in each case act on the recommendation of the commission,” reads the constitution in part.
Where the question of removal in terms of section 158 has been referred to the commission, the constitution stipulates that the King may suspend from office the chief justice or the other justice as the case may be for the duration of the inquiry.
Subject to considerations of fairness and natural justice, the constitution also states that the commission may be reconstituted for the purpose as may be appropriate, the chief justice being replaced by the most senior justice of the Supreme Court, and a justice who is a member of the Commission being replaced by another Justice appointed by the other members of the Commission.
The inquiry, in terms of the constitution, should not take longer than three months.
“The King may at any time revoke a suspension,” it was clarified.
In the complaint, Maphalala was accused of not Consulting with the Law Society President prior to establishment of commercial courts.
The purpose of the consultation with the president was to allow for the input of the law profession in the establishment of the division of the High Court.
The LSS also alleged that the chief justice interfered with the administration of justice, violated court orders, engaged in conduct where he has a conflict of interest and obstructed the course of justice in the matter where he was a litigant against Parliament through deciding to empanel a full bench of the High Court comprising Justice Maseko, Justice BS Dlamini and Justice BW Magagula.
alleged
The CJ was alleged to have wilfully violated the court order that directed with the principal judge be the one to empanel the full bench.
Further, the LSS submitted that on April 11, 2018 the CJ issued an order banning an attorney Muzi Simelane from appearing before any court in the country.
The law society argued that the CJ does not have the powers to issue an order banning an attorney from practising any works in the country.
Maphalala was also accused of restoring the position of an unnamed lady whom she had made sexual advances to upon realising that she had reported him.
“The following day after laying the complaint, she withdrew the complaint stating that she was allegedly asked by the chief justice to do so and that he allegedly undertook to restore her to her position,” reads the complaint in part.
The LSS also accused the CJ of acting irregularly in the appointment of acting judges, whom he gave one month contracts.
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