Attorney loses battle with Chief Justice over dirty hands

30 October 2020 · Carmel Rickard

Strange to say, there are two current cases in the region citing a Chief Justice as respondent in a civil matter. Apart from the grave issue involving the Chief Justice of Zimbabwe (see above), there is another case in which the respondent is a Chief Justice. This time it is the judicial head of Eswatini, Bheki Maphalala, who was sued as a respondent, along with the government of Eswatini and the attorney general. The applicant was a local attorney, Muzi Simelane, whose battle with the CJ over the issues raised in this judgment, has lasted for a number of years.

Read judgment

Stripped of niceties, the point of this application was to win judicial support for attorney Muzi Simelane’s plea: the Chief Justice had barred him from appearing before any court in Eswatini and he was hoping that the high court would find the notice by the CJ to be ‘unconstitutional, unlawful and invalid’.

When the matter was called in court during September, however, the CJ (as respondent) had raised a preliminary issue in response to Simelane’s constitutional challenges. The high court should first consider the ‘doctrine of unclean hands’, his legal team argued.

The CJ’s lawyers said that Simelane had deliberately refused to comply with orders of the high court and the Supreme Court. On that basis, Simelane should not be heard by the high court ‘until such time that he purges his contempt and complies with the orders of court.’

Punitive scale

Simelane had been ordered to pay E387 992 to Beauty Build, as well as interest at 9% from November 2011, and costs of suit on a punitive scale. Simelane had not paid the interest, so the judgment had not been fully complied with, said the court.

As far as Simelane was concerned, however, he said he was not liable to pay any interest since the order of the Supreme Court had been ‘subsequently varied’ by way of later orders. But the three high court judges disagreed with him. Having examined the wording of the orders in the later cases, they concluded that there had been no ‘variation’ of the original order.

Simelane further argued that he should not be accused of non-compliance with the costs order, since it was the CJ who was ‘frustrating taxation of the bill of costs’.

Taxation

Again, the high court scrutinised correspondence on the issue and concluded that there was no ‘factual basis’ to contend that the CJ had been frustrating taxation of the matter.

Another argument put up by Simelane was that taxation should not go ahead as there was a pending review at the Supreme Court. Again, this was disputed. Simelane’s lawyers were asked to produce a copy of the review filed and pending at the Supreme Court. But all that was later produced was ‘what appeared to be a draft application for review.’

‘The document is not signed on behalf of the applicant nor has it been served upon the 1^st respondent. Although spaces for insertion of the date and time for hearing the application are provided for, no such date or time has been inserted. This leads only to one conclusion: there is no review application pending before the Supreme Court.’

Purged

Clearly, Simelane had not paid interest and costs as ordered by the court. He had been found guilty of contempt of court by the Supreme Court. The high court had found that he had still not fully paid the money he had been ordered to pay. ‘He therefore has still not purged his contempt and he accordingly approached the court with dirty hands. The decision of the Supreme Court that (he) is guilty of contempt … is binding upon this court until such time that (he) demonstrates that he has … purged his contempt.’

Further, once the Supreme Court found Simelane in contempt, it automatically meant that his hands ‘were dirty’ in relation to approaching the courts. ‘To allow him to then approach this court without first demonstrating that he has purged his contempt would be tantamount to setting aside the decision of the Supreme Court and this court has no authority to do that. It is bound by decisions of the Supreme Court.’

Carmel Rickard

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