Judge Masuku warns CJs 5 Secret Steps That Can Provide You A Fortune! (Binary500) 26/10/2014 03:00:00Stories BY SUNDAY REPORTER Ad by GoSave | Close imageFormer High Court Judge Thomas Masuku. Chief Justices, by the nature of their jobs, should not enmesh themselves in politics because by so doing, they undermine the independence of the judiciary. Former High COURT Judge Thomas Masuku, although not referring to a specific matter, said Chief Justices should be wary of involving themselves in politics. He made reference to the 2003 kaMkhweli case where there was a confrontation between the judiciary and the government. The judge said Swaziland seems to take a lead in many areas, and sometimes in the wrong direction. Ironically, the CJ together with the Minister of Justice and Constitutional Affairs, Sibusiso Shongwe and the Prime Minister Sibusiso Dlamini have been embroiled in a much publicised estate policy battle. Shongwe pronounced the policy without consulting government. The head of government ordered its WITHDRAWAL, to no avail, such that he ended up withdrawing it himself stating that it was unconstitutional in as much as there were no consultations. A case challenging the estate policy had already been filed with the High COURT but it was also withdrawn after the WITHDRAWAL of the policy. However, the CJ reinstated the case and ordered that it be proceeded with despite that the applicants had shown no interests in pursuing it. The CJ, in his statement, also accused the PM of contempt of court, SAVE for that he was not charged. This was an inference drawn from the CJ’s speech that in fact, this matter was already before the High Court when the PM spoke about it and withdrew the policy. In our jurisdiction, it is described as contempt of court for one to speak about a matter that is before the High Court and when same has not been dealt with to finality by the court. Judge Masuku also made reference to the case of the Law Society of Swaziland (LSS) against the Speaker of the House of Assembly in which the LSS challenged a probe that was to be instituted by parliament against its members (lawyers). When that case was set at the High Court, the Chief Justice, in a letter directed that the case was due to be heard by a full bench and chose who amongst the judges had to write the judgment. He did not end there as he also issued a directive on what was to happen in the event of a dissenting judgment from any of the judges. The CJ was also accused of rechanneling some matters set before a duty judge to another judge not on duty. He (CJ) decides who should hear any case coming before the High Court. However, in other countries within the SADC region, such is simply set by the computer. ‘People now fear the COURT’ The offence of Contempt of Court should not be used to hide shenanigans. This was said by former High Court Judge Thomas Masuku at the Happy Valley resort yesterday while addressing the participants in a seminar organised by Lawyers for HUMAN RIGHTS Swaziland (LHRS). “Contempt of court is becoming a big matter in Swaziland,” the Judge said. He said the rule in contempt of court states that all applications for determination of contempt charges should be brought by Notice accompanied by an affidavit but if it comes at the instance of a judge, no affidavit it shall be necessary. “This rule puts judges above the law and violates the rights to natural justice,” the judge lamented. He said the promulgated rules on contempt further provides that if one has been fined for contempt, the Registrar shall have the power to convert the fine into a civil case and attach the ASSETS of the convict to recover the fine. For instance, Masuku said, in the case of Bheki Makhubu and the Nation magazine, the Attorney General was given the right to sue out a summons for the recovery of the sums so that their properties could be attached and sold in execution to recover the fine. “People are not respecting the courts but they fear them,” Judge Masuku noted. He made an example of the instance where the Prime Minister Sibusiso Dlamini asked the media to defend him (when he spoke about the estate policy matter), adding that the judiciary should know that respect was earned and not demanded. Judge Masuku also clarified that when a judge misbehaves, it cannot be said to be contempt of court when one comments on that. “They are public officers, they hold public office and they are remunerated from public funds,” Judge Masuku concluded. Appointment of judges against Constitution The Chief Justice of Swaziland Michael Ramodibedi unilaterally appoints judges of superior courts, much against the dictates of our Constitution. This, it was stated, seems to affect our health in terms of the Constitution. It seems we do not practice what we promulgated into law. This was said by former High COURT Judge Thomas Masuku yesterday at Ezulwini where he made a presentation during the seminar organised by Lawyers for HUMAN RIGHTS Swaziland (LHRS). The judge said Swaziland needed an independent, impartial and ACCOUNTABLE judiciary which is independent of the executive and the legislature which will in turn lead to a situation whereby every judge would be FREE to decide a case before him in accordance with his assessment of the case. “We are in a new era where the Chief Justice unilaterally appointed judges and the senior judges of the High COURThave been sidelined,” Judge Masuku said. He said this was much against the constitution which says a judge should be appointed by the King in consultation with the JSC. The judge said he had noted in most legal notices appointing judges that such appointments were by Ramodibedi only and no reference was made to the Judicial Service Commission (JSC). He said the CJ also appointed Acting Judges of the Industrial Court of Appeal alone. “The Industrial Court and the Industrial Court of Appeal are not superior courts. Appointment of judges to these courts therefore should be done in terms of the Industrial Relations Act (of 2000 as amended) and not in terms of the Constitutions,” Judge Masuku clarified. The judge also spoke on the proliferation of Practise Directives, saying there were not as many practice directives as are now during the tenure of the then Chief Justices Richard Banda and Stanley Sappire. He said the directives were solely made for the purpose of impeaching upon our Constitutional rights. One of the directives most of the speakers complained about was that the High Court shall be debarred from ACCEPTING matters involving the King, and that of the allocation of cases at the High Court which should be done by the Registrar of the High Court in consultation with the CJ. Where is the CJ and some of his judges? This question came from Professor Michelo Hansungule when he addressed the meeting organised by Lawyers for HUMAN RIGHTS in Ezulwini yesterday. “I rarely see the Chief Justice in meetings, and if you invite the High Court judges, he does not say ‘why are you leaving me out?’; he does not attend meetings,” Hansungule said. “Where are the other judges? We INVITED all of them. This is for all of you,” Hansungule said, directing such questions to Justice Mbutfo Mamba and Qinisile Mabuza, of course without expecting an answer. The two are the only judges of the High Court who attended the seminar. On another note, Judge Mabuza thanked the organisers for arranging the conference. “As judges, we need this forum to correct ourselves. I want to align myself with what he (Judge Masuku) has said. When you speak the truth, the truth shall set you free,” Judge Mabuza concludes. Thulani Maseko’s wife reads letter from husband Incarcerated lawyer Thulani Maseko addressed the seminar from behind bars. He wrote a letters speaking on the rule of law and same was read out by his wife Tenele at the seminar which was held at the Happy Valley in eZulwini yesterday. Maseko said although the Constitution of Swaziland was a creation of the rule of law, same is not abided with in Swaziland. “Why are political parties banned in Swaziland, why can’t we REGISTER TUCOSWA, why are PUDEMO’s Mario Masuku and SWAYOCO’s Maxwell Dlamini languishing in jail, why is the judiciary headed by Ramodibedi when he is facing serious charges in his home country, why can’t we freely associate and why is there no freedom of association?” Maseko said in the letter. Maseko also urged Swaziland to adhere to the doctrine of separation of powers. Judicial independence guarantees the rule of law and safety. He added that without the rule of law, we would be reduced to nothing. Swazi CJ issue not sparred from discussions The speakers during the seminar for Lawyers for HUMAN RIGHTS held at the Happy Valley Resorts yesterday complained bitterly about the constant disregard of the country’s Constitution in relation to the Swazi Chief Justice issue. It was stated that the disrespect of the Constitution which should be an abnormality was then becoming normal for them. “This is complex. We need to educate the public. The Judiciary is entrusted with protecting the people. We should educate Swazis about the rule of law and the need of the judiciary and how it means to them. Sometimes we feel very helpless,” Judge Thomas Masuku said. Judge Masuku was responding to a concern raised by HURISWA’s Comfort Mabuza where he asked what was expected of the civil society when the abnormality becomes a norm. Mabuza said the judiciary was facing crisis and a child knows that. “The justices at the High COURT are frustrated because the person in the Chief Justice seat should not be there in the first place. The judiciary should not be left alone in this fight,” Mabuza said. NNLC’s Thabo Hlatshwako asked why a local Chief Justice had not been put in place because when the previous Chief Justice left, there were MOVES to put in place a local as Chief Justice. Judge Masuku stated that in the year 2008/2009 there was a MOVE by the then Minister of Justice and Constitutional Affairs, Prince David, for compliance with the 7-year period in Constitution. “The then minister and the then Chief Justice were so saying. When Justice Banda took over, it all stopped there,” Judge Masuku said. He also added that the 7-year period referred to lapsed on 26/27 July 2012 and a day before then, Justices Odoki, Levinson and Ota were appointed. “There was an abuse of subsection (2) (of Section 157) of the Constitution which states that if they are already in office, they may continue to hold office until SUCH time that their contracts expires,” he added. The contract of the incumbent Makhulu Baas was renewed indefinitely in 2012 such that he will hold office until such time that the contract expires. The section 157 of the Constitution provides that a local should hold the office of the Chief Justice after seven years of the Constitution coming into effect which effectively means a Swazi CJ should have been put in place in 2012. observer.org.sz/news/67193-judge-masuku-warns-cjs.html
Posted on: Sun, 26 Oct 2014 04:53:56 +0000
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