THIS COUNTRY COMES FROM THE PITS: A BRIEF HISTORY OF THE JUDICIARY AND THE BATTLE FOR ROYAL CONTROL OF THE COURTS
For once forget all the scandals involving the current Chief justice.
Just pretend you know nothing of the administration of the courts and the competence or lack thereof of the incumbent CJ. Forget too the scandals involving the late former CJ Micheal Ramodibedi and the hullabaloo that saw the removal of erudite Judge Thomas Masuku. Pretend all that never happened.
Forget that the country entered what was supposed to be constitutionalism in 2005. Wipe that slate clean. Now allow us to tell a story of the judiciary and the battle for power between the royal family and the legal fraternity. This battle often involved the Ministry of Justice, The Chief Justice and the royal family.
The royal family has always had a surreptitious war with the country´s judiciary and has played itself out over many years. Former Chief Justice Michael Ramodibedi was the last protagonist in this battle.
This contest between the judiciary seems to have been consolidated with the appointment of the Indvuna turned Chief Justice Bheki Maphalala after the brief turbulence with the late Ramdipedi. For the uninitiated, the late former Chief Justice Ramodibedi was a former Supreme Court Judge born in Sotho. He was for all intent and purposes an acclaimed judge in the region having served in the Appeal Court of Botswana, Seychelles, Swaziland and his native country Lesotho.
Ramodibedi had been a Supreme Court Judge in eSwatini for almost three years before he was made Chief Justice by His Majesty King Mswati III. He replaced Malawian born Judge Francis Banda (72). Banda had taken over as Chief Justice of Swaziland in 2007 from Judge Jacobus Annandale. Annandale had acted in the position for over three years.
Inkhosikati Zena Mahlangu. Her marriage to King Mswati was controversial and caused a judicial crisis
Banda subsequently retired as the country’s Chief Justice on medical grounds after suffering from a stroke in the British overseas territory of Turks and Caicos Islands. The appointment of Banda as the Chief Justice was itself not without controversy. It was seen by many as yet another vote of no confidence to local judges by His Majesty King Mswati III. When the constitution came into effect in 2005 many thought the position would be held by a local.
In this regard, the country stood alone in the countries that make up the Southern African Customs Union as the only one where the position of Chief Justice had never been held by a local. The late and highly respected Justice Ben Dunn, a Swazi, was twice overlooked for the position of Chief Justice. In 1991 Judge Dunn acted as Chief Justice but when the time for making a substantive application came, David Hull, from New Zealand, was appointed instead.
Judge Dunn acted as Chief Justice again in 1995/1996. His acting appointment was revoked after he ordered the release from custody of three union leaders who had been arrested during a nationwide strike. Stanley Sapire, from South Africa, was appointed acting Chief justice in Dunn's stead. Sapire was subsequently confirmed as Chief Justice.
The revocation of Judge Dunn's acting appointment prompted the resignation of then President of the Court of Appeal D A Melamet. Judge Sapire’s fall from grace was both sensational and unexpected. This was after the judge had refused to drop a case involving the King and Lindiwe Dlamini, a little known Swaziland Post and Telecommunications (SPTC) employee who wanted his daughter, taken by the king’s aides to be the monarch’s wife, to be returned.
The case drew widespread attention and was widely reported all over the world. The Swazi Observer, a subsidiary company of Tibiyo Taka Ngwane, a royal family piggy bank, was closed at the height of the case because of their reportage of the case at the High Court. Yes, a total of over 100 employees lost their jobs because the royal family was not happy with how they were reporting a story already in the public domain.
The late Micheal Ramodipedi. He was a former controversial Chief Justice in Swaziland.
The sensational nature of the case at the High Court raffled and embarrassed the royal family and attempts were made to have the case dropped. Judge Sapire was approached by security personnel and the country’s then Attorney General and now Supreme Court Judge, Phesheya Dlamini, acting on instruction from the palace, where the Judge was ordered to drop the case.
The Judge refused. However, following behind the scenes lobbying Dlamini, the Inkhosikati´s mother, was forced to withdraw the case. For his part, Sapire was forced to resign. However, the Judge did not know what ghastly awaited him when on 20 November 2002 she woke up to read newspaper advertisements seeking applicants to fill his job even though he had not resigned.
The Judge had obviously angered His Majesty by ignoring a royal decree to drop the case. The Director of Public Prosecution (DPP) was Lincoln Ngarua, a Kenyan national who had occupied the position for a period spanning over five years. Ngarua was deputised by the late Musa Sibandze. Upon the death of Sibandze, the former DPP former Hhohho senior Magistrate, Mumcy Dlamini, was appointed incumbent. Mumcy is now a High Court Judge.
Ngarua’s work as the DPP was seen by many as professional in many respects. During the Zena Mahlangu saga, Ngarua attempted to charge the country’s Attorney General, Phesheya Dlamini, with contempt of court for instructing Judge Sapire to drop a case involving Lindiwe Dlamini and the King. Perhaps a little explanation of who Phesheya Dlamini is would help.
Dlamini is the former Swaziland's ambassador to Kuwait and former Attorney General. He is a grandchild to King Sobhuza's eldest son. He (Phesheya) was appointed Attorney-General in 1999 after he had been an attorney for only two years, sparking wide spread protest and condemnation from civic society and the law society alike.
Former Director of Public Prosecutions Paul Lincoln Ngarua. He sued the state E1 Million following his constructive dismissal
The minimum requirement for the position of AG in Swaziland is ten years. Subsequent to his appointment, the King issued a decree to the effect that his appointment could not be challenged in any court of law. Phesheya was "redeployed" after the expiry of his contract in 2005 to serve in Kuwait. He was replaced by James Majahenkhaba Dlamini, son of the late Prince Bhekimpi, a former Prime Minister. He was formerly a law lecturer at the University of Swaziland.
Ngarua’s attempts to charge the AG seemed to have been his main undoing and his fate was sealed without a blink of an eye. It was unheard of in eSwatini for the AG to be charged. When reports started coming out that Ngarua was to be fired, his offices were broken into as part of a campaign to "persecute" him.
A mysterious person, who turned out to be Principal Secretary in the Ministry of Justice, Hugh Magagula, had apparently got into the office to change the locks and sprinkle some mysterious substances. Luckily for Ngarua, perhaps out of his gut feelings, he had installed a secret camera and managed to capture everything on tape. The next day he brought in a Priest to "cleanse" his offices.
It is now history that Ngarua eventually left the country but not without successfully suing the government for a sum of over E1 Million at the Industrial Court. When Ngarua’s fall from grace became more apparent, Mumcy Dlamini was made the Acting Director before she was confirmed in subsequent years. Dlamini’s work required that she work closely with the Attorney General, then occupied by Phesheya Dlamini.
However, after the Zena Mahlangu scandal, the royal family was forced to redeploy their trusted lieutenant just to save face. In came Majehenkhaba Dlamini, another royalist and former member of the constitution drafting committee. It soon turned out that the DPP and the AG were husband and wife making the administration of justice in Swaziland literally a ‘family affair’.
This fueled speculation that the royal family was tightening its grip on the judiciary. Having secured control of the two most powerful positions within the judiciary, the next target became the courts. Lorraine Hlophe’s rise to power was been meteoric indeed. Hlophe was herself a little known Magistrate in Mbabane before she shot to fame when she was made coroner of the controversial Mandla Mathousand Ngubane’s death enquiry. Mandla Ngubeni died in police custody in 2004.
Former Attorney General and now Supreme Court Judge Phesheya Senzangakhona Dlamini
His death sparked outrage in Swaziland and leaked pictures of the deceased showed that he had been beaten by police to death. Then Prime Minister Themba Dlamini was forced to set up a Commission of Enquiry to probe the death. After a marathon investigation, Hlophe came up with a lousy dump squib report that placed no liability for Ngubeni’s death on the police or anyone. In fact, many felt it was not even worth the paper it was written on.
Hlophe managed to shield the government from a potentially explosive scandal and for her good work, she was given the position of Registrar of the Courts of Swaziland upon the death of Shiyumhlaba Dlamini in 2006. Since then Hlophe’s power and influence has risen beyond comprehension from a simple Magistrate to Supreme Court Registrar, Under Secretary, Principal Secretary to now Judge.
Following a court judgment that barred the Principal Secretary in the Ministry of Justice from sitting as Secretary in the Judicial Service Commission (JSC), Hlophe was appointed as the obvious choice to sit in the all powerful body. The JSC is a legal body that recommends the hiring and firing of judges. As soon as she had settled in Hlophe began to swell her power and influence.
As the defacto CEO for the administration of all courts, including, but not limited to, the hiring of Magistrates and Deputy Sheriffs, and court staff accusations of maladministration, nepotism and general incompetence began to surface. In fact, there were allegations that as the registrar, cases involving her husband's law firm, Magagula-Hlophe Attorneys, were being allocated hearing dates ahead of older cases. She was accused of dispensing patronage and frustrating some of the staff she had found at the High Court.
It was not long before Hlophe had a complete fall out with Judge Qinisile Mabuza. The Judge had accused the Registrar of giving her husband, lawyer turn3d Judge, privileged court recordings during the controversial semesterisation fiasco. From then on the two never saw eye to eye and the relations seemed to improve in subsequent years. As already mentioned above, the Judicial Service Commission (JSC) in Swaziland is indeed a powerful body.
Section 160 of the Swaziland Constitution spells out in detail the duties of the JSC. Before the coming of the constitution in 2005 the composition of the JSC was itself an affront to a country claiming to be upholding the rule of law. Members of the JSC included Jacobus Annandale (then CJ), Lomcebo Dlamini (Woman and the Law National Coordinator) (Musa Dlamini (attorney) Sicelo Dlamini (then Principal Secretary in the Ministry of Justice), Reverend Advocate Percy Mngometulu (father to Inkhosikati LaMbikiza) and Mntonzima Dlamini (the late former head of the Civil Service Commission).
Most of the present Judges of the High Court and Industrial Court were recommended by this body. This body however became controversial when internal strife threatened to eat its core mandate. Allegations started surfacing that the JSC was questioning the academic credentials of their leader, Judge Annadale.
Judge Lorraine Hlophe
In fact things came to a heat that at one time Sicelo Dlamini, then Principal Secretary at the Ministry of Justice, and Judge Annandale almost fought while in a meeting. While reporting about the JSC working for the Times of Swaziland editor Mbongeni Mbingo was called to a meeting by Dlamini to try and persuade him and his journalists to stop writing about the issues within the JSC.
Dlamini´s view was that some of the Times SUNDAY journalists were serving some secret cabals that were hell-bent on destabilising the judiciary. In fact, in that meeting, Dlamini openly stated that he disliked Annandale because he was not qualified for the job and was racist. The JSC also had to deal with a palace that refused to endorse judges that they had recommended should be appointed.
Many deserving lawyers have and continue to be sidelined from appointment as judges because their loyalty is questionable. For example, renowned Advocate Lucas Maziya has time and again been taunted as a deserving Judge but the palace has refused to endorse him. This is the same for other prominent lawyers like Zweli Jele, Lindiwe Khumalo- Matse among others.