Last week Friday the most explosive revelation happened in court but was missed by the public because the journalist who wrote the story missed the nub of the issue(s). 

The Times has been reporting on an ongoing case at the Supreme Court involving Judge Zonke Magagula and senior lawyer Mangaliso Magagula where the latter was applying that the Judge(s) recuse himself in the case between Big Tree Pty Ltd and Galp Eswatini Limited. For the untrained journalistic eye, the story (and by extension the headline) was about the fact that lawyer Mangaliso Magagula had protested in court that “there is no JSC this year” in response to a controversial refusal of some Supreme Court judges from recusing themselves from his case. Judge Magagula sits on the bench too.

Buried deep inside the article was the revelation that should have made the country pose for a second and make a collective “what?” sigh of exasperation. Lawyer Mangaliso (we will refer to him by his first name for clarity) told the court that Judge Magagula needed to recuse himself from the case involving Nur (Pty) Ltd review application against Gulf Eswatini (Pty) Ltd.

There is a lot of background information between the two contending parties but we will jump them with the assumption the reader is already following the case at the High Court.

The recusal application is a none issue too, its normal judicial practice. It is the why that raises hair. Lawyer Magagula alleges that he was handling a matter on behalf of a client where he was recovering money that had been misappropriated by the Judge. He went further to claim, in open court, that the money misappropriated by the Judge had still not been paid back to date. “It is hard to get justice and a fair trial from a judge who sits in a high stakes matter. It is not the client´s fault or mine that you are in this situation.

Clients deserve an impartial judge. Me and my clients are not at fault. I am doing my work as a lawyer,” charged the lawyer. Mangaliso alleges that it is worse that the said debt is now in arrears. Now, if we ever wanted evidence of how compromised our judges are, then this is the smoking gun.

Here is a senior lawyer telling a Judge you stole money from my client and you are defaulting on paying but here you are having the temerity to want to judge my case? It does not get any more explosive than that.

This begs the crucial question: Does the Judicial Service Commission (JSC) adequately vet judges before recommending their appointment? How did they overlook the alleged misappropriation of funds that necessitated repayment by the Judge? With the highest turnover of judges in the region, if not the continent—four impeachments since the inception of the constitution—shouldn't the JSC tighten its controls on judicial appointments?

And how many other judges find themselves in a similar predicament to Judge Magagula's? This case underscores the erosion of public trust in the judiciary. Judges are not only expected to dispense justice but to also be perceived as doing so.

The public's faith in the judiciary hinges on transparency and accountability. As this case unfolds, it will be telling to see whether Judge Magagula indeed recuses himself.