Attorney, fugitive from justice, sues Chief Justice but loses

22 November 2019 · Carmel Rickard

The case of Siboniso Clement Dlamini has caused ructions in Eswatini’s legal circles for some time. Now three members of the high court have laid down the law. Dlamini, one of the country’s longest-serving attorneys, has been fighting to have the Chief Justice investigated for misconduct because the CJ barred Dlamini from appearing in any court until he submitted himself to prison as punishment for contempt of court. At the heart of the matter is Dlamini’s handling of a deceased estate – and a widow who is clamouring for her inheritance.

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When Martin Ndzinisa died in 2001, Siboniso Dlamini handled the deceased estate. Many years later, however, and the widow, Phindile Ndzinisa, has seen not one cent of the E910 000 received by Dlamini’s trust fund on behalf of the estate.

The widow began to clamour for her inheritance, and eventually she went to court where an order was made, by consent, for Dlamini to lodge the liquidation and distribution account with the Master by a stipulated date.

Maintenance

Nothing happened, and two years later she tried again, applying for Dlamini to file a full account of what had happened to the money. This time, during April 2014, the court granted an interim order for Dlamini to pay Ndzinisa E8 000 per month as maintenance, pending his lodging of the account. Six months later not a single payment had been made to her; she returned to court and the interim order was made final.

Since then Dlamini has repeatedly challenged the outcome but he has had no luck.

Eventually, Ndzinisa applied for a contempt order since she had received no maintenance at all. The Supreme Court granted her application and ordered that Dlamini should be jailed for 30 days, suspended on condition he paid the maintenance.

Purge

In April 2018 Dlamini appeared in the Supreme Court on an unrelated matter before three judges including the Chief Justice, Bheki Maphalala. At the start of the hearing, the CJ said that Dlamini had not complied with the two supreme court judgments against him. The CJ said he had thus taken the decision to bar Dlamini from any further appearance in Eswatini’s law courts. He was not allowed to appeal in any court of the land until he had purged his contempt. When Dlamini tried to bring an urgent application against the CJ to overturned this debarring, the registrar refused to issue a case number, on the instruction of the CJ.

Since then, Dlamini has complained to the Human Rights Commission and the minister of justice, saying his right to a hearing had been violated. He said he had been ordered to pay maintenance even though there was no money left because of expenses that the estate had to cover.

Dlamini made formal complaints against the CJ saying he had tried to defeat the ends of justice and urging that a committee be set up to investigate the CJ’s ‘serious misbehaviour’. He also gave notice that he was claiming about USD250 000 in damages from the Attorney General for the CJ’s action.

'Academic'

It seemed the dispute had been forgotten but, earlier this month, three judges of the high court delivered their decision in Dlamini’s challenge to the CJ’s directive that he was not allowed to appear in any of the country’s courts.

Dlamini holds to his claim that he had filed the liquidation and distribution account in December 2012, and so the order that he had to pay monthly maintenance to Ndzinisa was thus ‘academic’ since the estate had already been finalised.

Counsel for the CJ said Dlamini’s application should not be heard since he had ‘unclean hands’ and had not purged his contempt of the court order that he pay E8 000 per month. In addition, he was a fugitive from justice.

The three judges said the preparatory points raised by the CJ could be condensed: given the circumstances of the case, was Dlamini entitled to access the courts?

'Fatal irregularity'

It was true that previous supreme court decisions had made clear that ‘no person shall be condemned, punished or have any of his legal rights compromised by a court of law without being heard’.

But did this principle apply in Dlamini’s case and was the principle perhaps more flexible than it seemed? The court then quoted previous decisions to the effect that if a court had not heard argument on behalf of a party ‘due to omission’, this ‘might not constitute a fatal irregularity’.

If there had been a chance for the party to make representations but the party had not suffered prejudice, then the court would not necessarily set aside the decision. In Dlamini’s case, he had been told in court that the CJ planned to bar him. There had been an opportunity for him to make representations before the CJ’s written order was circulated that evening. Why did he not raise his side of the story in court? In the view of the full court, it was clear that the principle of being heard before a decision was taken was ‘not a hard and fast maxim’. All three grounds that Dlamini said he wanted to have raised in his defence had already been raised in three courts and rejected.

'Flagrantly disobeyed the court'

As for the CJ’s claim that Dlamini had come to court with unclean hands, this doctrine had emerged to compel parties to comply with court orders. Public order dictated that where a litigant ‘flagrantly’ disobeyed court orders, this doctrine could be invoked.

‘You cannot hope to get assistance from the very machinery you disregard.’ In this case Dlamini was both in contempt of court and a fugitive from justice.

His contempt was clearly established. And he had been released from prison before serving his full time because he demanded a special diet and prison officials released him so that they did not need to deal with his dietary needs. The court called this evading justice by escaping from prison ‘using subtle means’.

'Serious blight'

The court said it could not come to Dlamini’s rescue as the scales of justice were tilted in favour of public interest.

In a separate concurring decision, Judge C Maphanga said it was a serious blight on the profession that the Law Society had taken no steps against Dlamini for professional misconduct. The judge urged that the society now ‘act appropriately’, ‘lest it and the justice system suffer further reputational damage.’

Carmel Rickard

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