eSwatini Judiciary: A fish rots from the head down
BY NIMROD MABUZA
It is highly unlikely that the startling allegations made by suspended judge, Justice Sipho Nkosi at his impeachment proceedings last year against the Chief Justice, Bheki Maphalala will ever be acted upon.
Among the litany of allegations, Justice Nkosi accused Justice Maphalala of breaching the Constitution by interfering in court proceedings.
Justice Nkosi further alleged there was capture of the judiciary. He stated he was ready to pour out everything before a properly constituted commission.
He accused the CJ of impeding his performance as a judge of the High Court by not affording him the requisite tools.
Justice Nkosi took up the matter of his impeachment with Liqoqo, calling for the investigation and removal of CJ Maphalala.
He argued that because of the nature of relationship he had with Justice Maphalala, the chief justice could not preside over his hearing.
Justice Maphalala has proved himself worthy to bakaNgwane since his appointment in 2015, following the removal of his predecessor, the late Justice Michael Ramodibedi.
It can be said that one of the moves made by the chief justice to prove he is an important asset to the authorities was his decision to block the court challenge to the renaming of the country by King Mswati from Swaziland to eSwatini in 2018 without a valid legislative instrument that gave him the power to do so.
The king renamed the country, effectively by decree during his 50th birthday celebrations held at Mavuso Trade Centre in Manzini.
That court challenge is gathering dust somewhere in the High Court. Human Rights lawyer, Mr Thulani Maseko challenged the constitutionality of the king’s decree.
The historical records show that bakaNgwane prefer to appoint people with questionable ethical virtues to important positions to keep them on a tight leash and ensure they do their bidding.
With the Judicial Service Commission (JSC) having recently placed advertisements in the newspapers calling for applications for High Court judge positions, Justice Nkosi would be best advised to prepare himself for an exit from the bench where he has served for some six years now.
Over the last 20 years or so, the JSC seems to have lost its independence, the result of which we have seen a steady decline in the country’s legal system.
In the early ‘90s, then Chief Justice, Stanley Sapire had haemorrhaged the JSC when he joined what was said to be the Committee on Justice, otherwise known as the Thursday Committee.
This committee, which was illegal because it had not been established under any law, sat at Ludzidzini and usurped functions of the JSC.
Justice Sapire fully participated in the affairs of the Thursday Committee and executed decisions taken there that affected the functioning of the judiciary.
When he eventually did have a falling out with the Thursday Committee, Justice Sapire tried to revive the JSC.
When the mother of one of King Mswati’s then liphovela launched a court action against the monarch demanding that he produce her daughter who had already been chosen by the king as his next inkhosikati, Justice Sapire was told to stop the hearing of the case or resign.
His days on the bench were numbered.
Believing that he would be arrested, the judge skipped the country. That would have come as a relief to bakaNgwane because the floodgates were now open for them to do as they please with the country’s judicial system.
Justice Sapire was replaced by Justice Jacobus Annandale in an acting capacity as chief justice.
As the judicial crisis mounted in the country, on November 28, 2002, then Prime Minister, Mr Barnabas Sibusiso Dlamini issued that notorious statement where he declared that government would not adhere to two decisions by the Court of Appeal, as it then was.
All the appellate court judges, from South Africa, resigned. The country’s judicial system had collapsed.
On his appointment in October 2003, as Minister of Justice and Constitutional Affairs, Prince David set out to clean the mess left behind by Justice Sapire and the resultant judicial crisis.
He refused to recognise the Thursday Committee and it eventually died a natural death.
The prince then went on to revive the JSC, which assisted in the recruitment of Chief Justice Richard Banda. However, the Malawian jurist did not stay long and resigned in 2009 on health reasons.
At the end of his five-year-term, in September 2008, Prince David was not reappointed to cabinet despite his significant achievements in re-establishing a functional judicial system in the country.
Instead, Mr Barnabas Sibusiso Dlamini, whose statement in 2002 had collapsed the judiciary, was reappointed to office. The wrecking of the judiciary started afresh.
Most significant in the renewed efforts to bring down the judiciary was the appointment of Justice Michael Ramodibedi as chief justice.
A distinguished jurist, highly respected in the field of law before coming to eSwatini as a judge in the Supreme Court, Justice Ramodibedi was to eventually be the ultimate destroyer of all that was in the hallowed halls of the judiciary.
He fired his first salvo by personally prosecuting and then firing High Court judge, Justice Thomas Masuku in a hearing that was held in camera, far away from public view.
Justice Masuku was prosecuted on trumped up charges when an orbiter dictum in a judgment he had delivered against one man who looked after the king’s cattle was twisted to make a case against him.
When then Minister of Justice, Reverend David Mathse stood up to this abuse of power by the chief justice, King Mswati also had him removed.
Soon after, Justice Ramodibedi issued a practice directive banning all litigation against the king.
He also appointed a small time lawyer in private practice, Mr Bheki Maphalala, as a judge of the High Court.
Maphalala had previously been part of the team that had drafted the Constitution which became the supreme law of the land in 2005.
Justice Ramodibedi then began the process of grooming Justice Maphalala for his future appointment as chief justice.
At his impeachment hearing in 2015, Justice Ramodibedi revealed that he had handpicked Justice Maphalala, who was now chairing the hearing, and had groomed him to take over from him.
Earlier in his tenure as head of the judiciary, in 2011, Justice Ramodibedi had faced a revolt by lawyers led by the Law Society of Swaziland. They were calling for his removal from office.
Justice Ramodibedi was accused of, among other things, fixing judgments. The lawyers wanted him to withdraw the practice directive concerning the king he had issued earlier.
Soon after his appointment to the bench, Justice Maphalala quickly settled down to run Justice Ramodibedi’s nefarious errands through judicial sleight of hand.
A case in point is one involving The Nation magazine which had criticised the then chief justice, the result of which was that it was slapped with a charge of contempt of court.
After a hearing that ran over two days, it took Justice Maphalala 14 months to return a verdict of guilty against the magazine editor.
Without any mitigation of sentence, he ordered that the editor be thrown in jail if he could not pay a fine of E200 000 in three days.
These were very scary times.
A dinner organised by the executive of government and the judiciary which was meant to celebrate that government had won all its cases at the Supreme Court was cancelled at the 11th hour, after invitations had been sent out.
No explanation was given for the cancellation.
The Prime Minister of the day, Barnabas Sibusiso Dlamini could not sing enough praises for Justice Ramodibedi.
Asked by editors at a breakfast meeting held at the Mountain Inn on one occasion, the premier famously declared, “siyatichenya nga chief justice wetfu.”
The premier would later have to eat his words when Justice Ramodibedi overplayed his hand and ran amok at the High Court.
In 2013, at his 45th birthday celebrations, King Mswati conferred the Order of Merit on Justice Ramodibedi. By this time, the chef justice had turned the judiciary into his own fiefdom. It was now a runaway train.
However, the prime minister would soon fall out of favour with the chief justice whom had once praised.
As the countdown to his fall from grace began, Justice Ramodibedi had the editor of The Nation, Bheki Makhubu and columnist,Thulani Maseko arrested on charges of contempt of court in March 2014 after they published articles in the magazine questioning the flagrant abuse of power following the arrest of a government vehicle examiner, Bhantshana Gwebu.
He had another of his lapdogs, Justice Mpendulo Simelane, newly parachuted to the bench at the High Court from the offices of the registrar preside over their trial.
Justice Simelane, completely out of his depth, did everything he could to please his master. He found the duo guilty and sentenced them to two years in prison.
It was the beginning of Justice Ramodibedi’s downfall.
A few months before the release of Makhubu and Maseko in June 2015, a scandal broke out involving Justice Ramodibedi that would seal his fate and ensure his downfall.
It was the case of Swaziland Revenue Authority v Impunzi Wholesalers that led to his downfall in 2015.
In this case, Impunzi had challenged the SRA in court over tax revenue from blankets and quilts that had been imported from China.
The case was first heard by then Principal Judge, Justice Stanley Maphalala who found for SRA and ordered Impunzi to pay the taxes due.
Impunzi appealed the decision.
In a Supreme Court judgment in which there were allegations of bribery and corruption, Chief Justice Ramodibedi, sitting with Justices Bheki Maphalala and Jacobus Annandale, unanimously overturned the High Court decision.
There were allegations that some E2 million was paid to secure the decision.
Justice Ramodibedi was impeached for a string of crimes he was accused of having committed while in office.
Chairing the inquiry into his behaviour was his protégé, Justice Maphalala who had now turned on him.
Despite protests from Justice Ramodibedi, Justice Maphalala, then acting as chief justice, was unmoved.
Justice Ramodibedi was tried in absentia and removed from office after he had been admitted to hospital.
When bakaNgwane were done with Justice Ramodibedi, who was allowed safe passage to leave the country and go back to Lesotho, his home country, they then turned on Justice Mpendulo Simelane, his errand boy.
He too was accused of having sat on the bench and was the judge in a case involving Justice Ramodibedi and a dispute he had with the then Swaziland Revenue Authority.
There was clearly a conflict of interest in his sitting as judge because Justice Simelane had been intimately involved in the case before his appointment to the bench while registrar of the High Court.
Again, Justice Maphalala chaired those impeachment proceedings despite Justice Simelane’s protestations.
In fact, not only did Justice Maphalala chair the hearing, he also filed an affidavit as evidence he presented to himself and on behalf of the JSC which had laid the charges.
The judicial system eSwatini had gone completely crazy.
Justice Nkosi’s impeachment hearing is the third to come before Justice Maphalala since he took high office. No chief justice has fired so many judges during his tenure since independence.
But then, again, Justice Maphalala is also the first liSwati-born chief justice. He is the first of many things.
Justice Nkosi also tried to stop Justice Maphalala from chairing the proceedings without success.
A private company, Nur and Sam, which is involved in protracted litigation with Galp Eswatini has filed a complaint against the chief justice at the High Court, accusing him of interfering in the case.
The directors of Nur and Sam have accused the chief justice of judicial misconduct after he issued an instruction to Justice Ticheme Dlamini that he hear afresh an application for his recusal after he had already ruled on the matter.
It would appear that Justice Maphalala has chosen to be a hands-on chief justice and wants all cases in the country’s court to be decided by him.
The Deputy Director of Public Prosecution, Mr Israel Magagula has also accused Justice Maphalala of interfering in a cause now before the Supreme Court.
In this instance, Magagula has applied for the chief justice’s recusal in a criminal appeal hearing involving Johannes Mfan’ukhona Dlamini, popularly known as Kakona.
Submitted Magagula to court: “With due respect, I state that the conduct of the honourable chief justice, with regard to this matter, is not in line with due process and it is not in the interest of justice that he forms part of the panel to hear the appeal.”
Chief Justice Bheki Maphalala continues to rule at the highest judicial office in the land, despite the trail of accusations against him concerning unprofessional and unethical behaviour on his part.
To him, it is water down a duck’s back.
