Africa-Press – Eswatini. The Law Society of Eswatini has asked Chief Justice, Bheki Maphalala, to stop the Judicial Commission of Inquiry currently probing the Master of the High Court Office for alleged gross maladministration, abuse of power and embezzlement of estate monies.
The Society said the chief justice’s actions in establishing the commission without legal authority were unlawful and invalid and no legal consequences could arise from an unlawful act.
The lawyers said the chief justice by appointing the commission of inquiry he was allegedly directly interfering with a matter pending in court.
It also warned the chief justice against playing with public emotions on a matter that was of high public importance, given that the commission could not make legally valid findings and recommendations.
In the letter that was also copied to the Attorney General, Sifiso Khumalo, the Law Society said the chief justice had usurped the justice minister’s powers, something that could cause a constitutional crisis.
“Chief justice, by establishing a commission without authority, you have created a legal loophole that would be exploited by anyone, including those guilty of wrong doing,” stated the Law Society Secretary General, Charity Simelane.
“We need not mention the expense to the taxpayers to fund a commission that was not established according to law or put otherwise, a commission that is illegally established,” she further states in the letter.
The Society urged the chief justice to reconsider his decision of establishing the inquiry and defer establishment of the commission to the lawful authority.
Investigation
Simelane highlighted that other organs that were empowered to investigate the irregularities in the Master’s office had shown willingness to set up an investigation.
“Ironically, a parliamentary investigation into the Master’s office was stopped by an application instituted by the chief justice. The minister for justice and constitutional affairs (Prince Simelane) is the minister under whose responsibility the administration of estates falls as per Legal Notice No.189 of 2015, Assignment of Responsibilities. The minister has the mandate and is empowered by the laws of the country to establish such an enquiry, but your office does not have such mandate and power,” reads the letter in part.
Simelane made reference to Maphalala’s address wherein he said in establishing the commission, the CJ stated that he was acting in terms of Section 139(5) of the Constitution of the Kingdom of Eswatini Act No.001 of 2005 (the Constitution) which reads; “subject to the provisions of this Constitution, the chief justice is the head of the Judiciary and is responsible for the administration and supervision of the Judiciary”.
The secretary general said Section 139(5) of the Constitution does not directly or indirectly, expressly or impliedly confer or vests power upon the chief justice to appoint a commission of enquiry.
“Honourable chief justice, as lawyers, we all know that the exercise of any public power (Legislative, Executive or Judiciary) must derive from a law. There must be a law that empowers the chief justice to establish a commission of enquiry for his actions to be lawful,” she stated.
Power
“The exercise of power by yourself, as chief justice, in establishing the commission is without any legal basis whatsoever.
The provision of the Constitution relied on by yourself, as empowering you to establish the commission, does not in any way confer such power on the chief justice. The chief justice does not have power under the laws of the country to establish a commission of enquiry,” Simelane added.
Instead, the Law Society said the only law that governs commissions of enquiry and the mode of holding such commissions of enquiry was the Commissions of Enquiry Act No. 35 of 1963. Section 3(1) of the Commissions of Enquiry Act reads: ‘Appointment of commissions of enquiry and mode of holding enquiry. Any minister may, by notice in the gazette, issue a commission appointing one or more commissioners, and may therein provide that one or more members shall constitute a quorum for the purpose of the enquiry.’
She went on to clarify that the legal authority to establish a commission of enquiry into the Master’s office vested in the minister for justice and constitutional affairs, being the minister with responsibility for the Judiciary and the Administration of Estates. The Society explained that the responsibility was assigned to the minister for justice and constitutional affairs by His Majesty in terms of Legal Notice No.189 of 2015, assignment of responsibilities to ministers, exercising powers conferred by Section 70 of the Constitution.
Prince Simelane on Wednesday disclosed that he had not been officially informed about establishment of the commission by the CJ’s office. The minister said he only learned about the probe when someone sent a message thanking him for the move.
The prince said as much as the Judiciary was independent; it was a body which worked hand-in-hand with the ministry. He said it would have been a good thing had it been communicated.
The society’s position comes hardly a day after scathing revelations of alleged corruption were made during the first sitting of the commission at the Industrial Court of Appeal located at Intfutfuko Building.
Part of the submissions made on the first day, it was submitted that the chief justice allegedly told one of the beneficiaries that he was aware of corruption at the Master’s office where files allegedly disappear and the Master together with her deputy take over files of rich families.
It was also alleged that lawyers were benefitting from estates while official beneficiaries suffer.
The commission’s judges are; Supreme Court Judge Majahenkhaba Dlamini (Chairman), High Court Judge Mzwandile Fakudze (Deputy), Judge President of the Industrial Court of Appeal Justice Sifiso Nsibande (member), High Court Judge Maxine Langwenya (member), Industrial Court Judge Lorraine Hlophe (member) and acting Supreme Court Registrar Siphiwo Nyoni, who serves as secretary.
‘CJ implicated in Master’s office operations’
The Law Society has alleged that Chief Justice, Bheki Maphalala, was also implicated in issues relating to the workings of the office of the Master of the High Court.
As such, Secretary General, Charity Simelane said it was their honest belief that the CJ’s office was in any case not the appropriate authority to appoint the commission to investigate the serious allegations due to the conflict of interest that such appointment done by him raises.
The Society pointed out that judges appointed to the commission of inquiry report to him on a daily basis.
“As a result, justice will not be served where such an investigation is carried out by the judges appointed by the chief justice. Justice should not only be done but should be seen to be done. The correct, fair and legal position is that an independent and impartial authority empowered by law should institute the inquiry and carry out the investigation. Only in such situation can the nation be assured of a legitimate and credible investigation of the office of the Master of the High Court,” reads the letter directed to Maphalala in part.
It was added that the allegations of impropriety, maladministration and abuse of power in the Master’s office involve, inter alia, lawyers, judges and the CJ.
“It is important that the investigation be carried out by other organs of state that are independent, which in any event are the ones with oversight powers, assigned with the responsibility over the Judiciary and Administration of Estates and vested with the power to conduct an investigation or to establish a commission of enquiry,” she said.
The Society highlighted that it was of utmost importance that the investigation into the allegations of corruption into the Master’s office be independent and impartial.
Simelane said it could only be so if established by the minister in terms of the Commission of Enquiries Act or by Parliament, in its oversight role.
“For the avoidance of doubt, CJ, as the law society we welcome a lawful, independent and impartial investigation. We welcome an investigation established by law that will make legally valid and binding recommendations. As the Law Society and regulatory body for the legal profession, we support the establishment of a commission to enquire into the Master’s office as long it is done properly in terms of the law and by the correct office with authority to do so,” she stated.
Simelane said they expect that any such enquiry would include all aspects of the Master’s office, including any commissions or omissions, which may have been committed by lawyers and all others, including the office of the chief justice.
Judiciary will not be impartial
If a dispute arises in relation to any matter arising from the commission, the Law Society has argued that the Judiciary would not be impartial and would not play its role as an impartial adjudicator of disputes.
Secretary General, Charity Simelane, said this would deny the public their right to a fair hearing enshrined in the Constitution.
“The Judiciary will be a judge in its own cause. When such situations arise, the CJ, Bheki Maphalala’s office resorts to interfere with the administration of justice as we have observed in the past. A prime example of such interference is the pending case involving your office and Parliament, where you took Parliament to court to prevent it from establishing a select committee to investigate irregularities in the Master’s office,” states Simelane.
“Despite that you were a litigant; you proceeded to appoint a judge to hear your own matter. When a judge of the High Court ruled that this was improper, you appealed the decision, thereby insisting on appointing the judge to hear your own matter. It is disappointing that your action discloses a pattern of disregarding the rule of law,” Simelane submitted.
“By appointing the judicial commission, you are directly interfering with a matter pending in court. You (CJ) are the dominis litis in the matter and the proper course would have been for you to withdraw the matter. You have interfered with the matter and have rendered it academic by appointing the commission. This in itself is an act of interference with the administration of justice and the rule of law,” said Simelane.
The society explained that the role of chief justice was to safeguard the rule of law and promote proper administration of justice.
However, Simelane said by establishing the commission in the face of the matter pending before court it was clear that he was seeking to defeat the ends of justice in that case where he was a litigant.
The society went on to explain that the primary function of the Judiciary was to safeguard and enforce the rule of law.
Simelane said the rule of law, in its primary meaning, meant doing everything in accordance with law.
She mentioned that it was a violation of the rule of law for CJ to act in any way other than in accordance with law. “The Constitution of the country requires the Judiciary to uphold the rule of law. It is, in our view, unfortunate that the chief justice in unlawfully instituting and appointing the Commission of enquiry has placed himself in a position where he attacks the very rule of law which he is charged with defending and upholding. Your actions in establishing the commission of enquiry without any legal authority, is a violation of the rule of law. It brings the country’s justice system into disrepute,” alleged Simelane.
Inquiry continues on Monday, 34 cases filed
The commission will proceed with oral submissions on Monday and it has 34 cases registered..
This was communicated by Secretary and acting Supreme Court Registrar Siphiwe Nyoni, yesterday.
She explained that oral submissions had been suspended only on Thursdays and Fridays to allow for written submissions and receiving documentation by any of the aggrieved parties who made submissions on the first day of the inquiry (Wednesday).
“The commission receives both written and oral submissions.
Thursdays and Fridays are therefore reserved to consider written submissions as well as documents presented by those who appeared before the commission for oral submissions.
In other words the Monday to Wednesday is for oral but the commission still considers written submissions on Thursday and Friday,” Nyoni explained.
Matter
She disclosed that there had been 34 matters which had been filed by close of business yesterday.
The commission conducts its business at the Industrial Court of Appeal premises at the fourth floor of Intfutfuko Building in the capital city.
Members of the public who may want to make arrangements for oral or written submissions can contact Nyoni on 7606 3592. The calls can be made from 8am-5pm, from Monday to Friday.
Law society warns against playing with public emotions
The Law Society says given that the commission could not make legally valid findings and recommendations, they cautioned against playing with public emotions on a matter that was of high public importance.
“Chief justice, by establishing a commission without authority, you have created a legal loophole that would be exploited by anyone, including those guilty of wrong doing. We need not mention the expense to the taxpayers to fund a commission that was not established according to law or put otherwise, a commission that is illegally established,” reads the letter.
The commission was empowered to require any person, subject to any privilege which may be claimed by the person under law, to furnish information on matters which, in the opinion of the commission, may be relevant to the subject matter of the inquiry.
“A witness before the commission shall take an oath or make an affirmation in the form in use at the Magistrate’s Court. The chairman shall administer the oath or accept the affirmation,” it was stated in the terms of reference.
CJ usurped minister’s powers
By establishing a commission into the Master’s office without legal authority, the Law Society has alleged that the chief justice usurped powers conferred by law to the Minister for Justice and Constitutional Affairs Prince Simelane and could cause a constitutional crisis.
According to the society, the chief justice allegedly arrogated to himself responsibilities assigned by the King to the minister for justice and constitutional affairs in terms of Legal Notice No.189 of 2015, assignment of responsibilities to ministers.
“We are concerned that this can give rise to a constitutional crisis. Your actions in establishing the commission without legal authority are unlawful and invalid and no legal consequences can arise from an unlawful act. The commission established by the chief justice cannot make any legally valid recommendations and findings,” reads the letter in part.
Minister of Justice and Constitutional Affairs, Prince Simelane, requested the Judiciary to consider alerting the ministry on some of the decisions it takes.
“I feel I should not keep quiet about this but let me make use of this opportunity to express myself how I felt when I learned from someone that there was a Commission that had been set up to investigate the office of the Master of the High Court. Yes, the Judiciary is an independent body but it works hand-in- hand with the ministry. That means we deserve to be alerted of some of the decisions it takes,” said Prince Simelane.
According to the terms of reference of the commission, it was mentioned that a commissioner shall not be liable to an action or suit for anything done, or omitted to be done, in the execution of his duties in terms of this commission.
Source: observer
For More News And Analysis About Eswatini Follow Africa-Press
