RECUSAL of judges – when they should stand down, when not and if judges are always properly deciding whether to hear a case – has emerged as a serious issue in both Lesotho and Swaziland. In both those jurisdictions, decisions about recusal have left litigants worried that, with no judges available to hear their matters, they could have no access to justice.
SEVERAL cases in Swaziland have come to a halt over the last weeks because judges have recused themselves. Their decisions raise the questions whether they were correct to do so in the circumstances, and how litigation can proceed when judicial officers decline to hear a matter.
Without a written judgment on recusal decisions it is not easy to know whether the thinking measures up to constitutional standards, but in at least one case, the judges concerned are to be formally asked for reasons in writing.
Two of four recent cases involving recusal of judges in Swaziland concern attorneys barred by the Chief Justice, Bheki Maphalala, from appearing in court. In one case the attorney concerned asked for an inquiry into the Chief Justice’s behaviour, but when his application on the issue was called, the three judges slated to preside in the matter recused themselves. They said they could not hear the case as it involved the Chief Justice, and then left the courtroom. The second attorney affected by a “ban” from the Chief Justice had a similar experience when he approached a single judge about the issue only to have the judge recuse himself again saying this was because the Chief Justice was involved.
Another case concerns a high court registrar, transferred to the magistracy by the Chief Justice. When the registrar tried to challenge the “transfer” in the industrial court, claiming there had been no consultation, the judge due to hear the matter recused himself.
A fourth case involves a challenge to the constitutional validity of two contentious sedition and terrorism laws. In the high court the laws were declared unconstitutional by two judges to one. The government then appealed. Shortly before it was to be heard by five judges of the supreme court, the Chief Justice told members of the legal teams that the case could not go ahead as scheduled because some of the judges had recused themselves. A new date is now being negotiated.
Swazi human rights lawyer Thulani Maseko said the problem was not just about judges who refused to sit in matters but also about judges who refused to recuse themselves when it appeared obvious that they should not preside. “I think there is a rule of law crisis about the judiciary over the issue of recusal.”
He and other lawyers practicing in Swaziland said it seemed the problem of recusal was most acute when it involved a challenge to decisions of the Chief Justice.
The question of what happens where no judge is prepared to hear matters is complicated by the constitutional bar on non-Swazi citizens sitting on the bench. Since asking foreign judges to act is not an option, the search for a solution narrows: either local lawyers must be appointed as acting judges to hear these matters, or suitably qualified Swazi citizens working outside the country could be asked to return and preside in an acting capacity. Judge Thomas Masuku comes to mind. Formerly of the Swazi bench, he was fired by the previous chief justice and now works in Namibia where he has won awards for outstanding judicial achievement.
In Lesotho, meanwhile, another intriguing recusal matter has been playing out, this time involving all the mountain kingdom’s high court judges.
Ten high court interpreters have been engaged in a dispute about salary upgrades and back pay. They have initiated action against the ministries of justice and of public service over their increases, but before the main matter was heard their legal team successfully argued that all the country’s high court judges should recuse themselves from hearing the case.
According to the acting judge, Moroke Mokhesi, who has since taken over the case, the judges’ recusal was sought because in a judges’ meeting derogatory remarks were made about interpreters and “delinquent behaviour” with comments to the effect that there were serious doubts about their “qualifications and/or competence and commitment.”
In December 2017 the judge then hearing the matter ruled in favour of the submission by counsel for the interpreters that no local high court judge should preside. The case thus came to a dead end and for some time nothing further happened. The interpreters said they were promised that a foreign judge would hear the case – and then acting judge Mokhesi stepped in.
“It would seem that this case had been languishing in this court without any progress primarily due to the unavailability of a judge to preside over it,” he said. “When I was engaged on an acting role from the beginning of February 2018 this is one of the matters which was allocated to me.”
After he set down the case for hearing the interpreters’ legal representative said they had instructions to ask that the acting judge also recuse himself. Judge Mokhesi directed that a formal application should be brought. On the day it was called, with both legal teams in court, he asked for clarity on the identity of one of those involved. He said that if the person named was the same person he knew of that name, he would indeed recuse himself: they had worked closely together and she had been his interpreter for more than 10 years.
He asked counsel to establish whether she was still involved in the litigation, since he (the judge) knew that she had been promoted and now held “a substantive position” with the Master of the High Court. Court adjourned for him to do so, and a few minutes later counsel returned and confirmed that the woman was still an interested party in the case.
Given that information, Judge Mokhesi recused himself. But he later spoke to the woman herself and it emerged that, contrary to what the judge was told in court, she had not been contacted by counsel. She also said that she was no longer interested in the case at all.
The judge then called counsel back and asked for an explanation. He was told that the client had informed counsel that the woman was still involved, and counsel apologized for misleading the court.
The judge thus set aside his earlier decision to recuse himself and proceeded to deliver judgment confirming that he will hear the matter. He said that evidence in court made it clear that the applicants wanted him to recuse himself because of statements made by other people at meetings he did not attend. He quoted from precedent-setting judgments that judges “have a duty to sit in any case where they are not obliged to recuse themselves”.
With that decision not to recuse himself, the interpreters’ case should now at long last begin. The matters in Swaziland, however, appear more intractable – and it is open to doubt whether the authorities there are particularly keen to find a way forward that will allow all these cases to be heard.