On Saturday, 14 April, 2012, I was deeply saddened to learn about the untimely demise of Attorney Paul Mhlaba Shilubane, one of the premiere lawyers in Swaziland.

Sad times like these evoke discordant feelings.  One gets caught in an understandable quandary, whether to mourn or to celebrate. To mourn the sad passing of a dear colleague whom you held in high esteem or to celebrate a long life at law well lived? I consciously choose to do a bit of both.

P.M., as he was affectionately known, was an admitted attorney, notary and conveyancer of the Courts of the Kingdom of Swaziland, where he spent most of his practising life and of the Republics of Botswana and South Africa. In addition to his many other achievements and positions, he once served as an Acting Justice of the High Court in Swaziland and as President of the Law Society, most notably in 2002, when we had a serious crisis on the rule of law front as a country.

His fearless, decisive and practical leadership and wisdom in the latter capacity came to the fore. For the first time, and not frequently since then, because the legal terrain in the courts has changed dramatically, we saw the Law Society of Swaziland and its affiliates launching applications before the Courts to obtain orders in defence of the independence of the judiciary and the legal profession and the rule of law. Some of the cases included the Lawyers for Human Rights v The Minister for Justice; The Law Society v The Director of Public Prosecutions and a matter relating to my unlawful removal as a Justice of the High Court to the Industrial Court, and cases involving other Justices of the High Court, to mention a few.

I met PM as affectionately known, a few months ago and he did look very much unwell and even so declared. He was, despite his patently debilitating physical condition, in very high spirits. His only regret was the quagmire and deep abyss that the practice of the law, the independence of the judiciary and the rule of law had sunk into, most notably from the middle of the year 2011 in Swaziland, not to say things have now changed for the better. The aforesaid events of 2011, which ground the administration of justice to an abrupt halt for months on end, had also understandably weighed very heavily not only on his practice but also on his life, health and general well-being.


He was one of the very last senior lawyers in Swaziland, with most of the lawyers of his golden generation having already transcended into the celestial jurisdiction. His passing on leaves many unanswered questions about the security of the future of the legal profession in this country. I say so because when lawyers of his maturity, calibre, age, sagacity and experience are around, it is easy to seek wise counsel and to obtain it. Their very presence provides a calming, and re-assuring influence even in turbulent and tempestuous waters of the high legal seas. At the same time, to the political or legal delinquents, their mere presence forces a moment, albeit brief, of reflection and may be hopefully, a change of direction for the better.

I had first met Mr Shilubane when I served my pupillage in the Attorney-General’s Chambers. He was, notwithstanding his age, experience and stature, a man of friendly disposition and who treated his colleagues in the practice of the law, regardless of rank or seniority, with punctilious courtesy.

He was a man of a few words even in Court. His address was normally short but profound and characteristically perceptive. He was wont to cut even the most complex matters to the chase. He drafted his papers with unusual brevity, without however, sacrificing the necessary and key allegations or averrals. He was a warrior in Court but one who fought clean legal battles and when he lost, he accepted defeat with great dignity, with no recriminations, even when he was of the view that the judge may have erred in his judgment.

As a young judge who was both honoured and humbled to have him appear before me, he did not have a condescending attitude towards me, my comparatively young age notwithstanding. He treated the office I occupied with great deference and conducted himself with admirable courtesy and grace, in the true traditions of this noble profession. He never raised his voice and always found a funny side to a serious and engrossing legal argument. Behind what may have appeared as aggressive and unyielding Court papers at first blush, was a fragile and humane lawyer, ready to concede, where a concession was necessary or comely. His fragility was not a weakness but his strength as a professional.

He of course liked to crack jokes outside Court and would reminisce about his life at law during some of the most difficult times in our history as a country. When you found him in his usual jocular mood, he would reach even those very much junior to him in age, speak their lingo and would deal with and appeal to them as equals. He was fond of using the word “Nigger” in reference to himself and to his friends and associates. He was not one to beat his breast about his vast experience, qualifications, achievements or acquirements. He was very modest and a paragon of the virtue of humility, the sign of a truly great person.

A few weeks before my judicial tribulations last year, after the die had already been cast, so to speak, he paid a courtesy call on my chambers. I had not seen him for some time and his matters before me had had to be postponed due to his ill-health. I was naturally elated to see him. He mentioned that plans were afoot to have him appointed as a judge in the Republic of South Africa, where he had been admitted and had also briefly practised. I wished him well as I was and am still of the view and firm persuasion that he was eminently qualified and sufficiently experienced to take up that position as he had been overlooked here at home. It would appear that his ailing health may have constituted a novus actus interveniens towards his possible appointment in South Africa.

One worthy example that he set, in my view and for which I shall always remember him, and which most lawyers in this jurisdiction need to emulate, was his passion, even at his age, for human rights. I remember most vividly when I was honoured to sit in the Supreme Court in May, 2009 in an acting capacity. He appeared for the appellants in a matter that had both serious and far-reaching constitutional, political and human rights implications.

When he stood up to address the Court, it was not difficult to perceive for the perceptive, his passion and deep belief in the sanctity and universality of human rights, and their application even to the Swazi people, regardless of the oft-mentioned but unappealing argument that Swazis are a unique people. It is a known fact that at the time he started practising law, human rights was not a topical issue. Further, most lawyers like him, who were also notaries and conveyancers, seemed to shy away from litigation and if they did not, they would be in Court in respect of commercial matters, which are not only regarded as being in vogue but also rewarding handsomely. He broke the tradition in that regard.

I would like to exhort our lawyers to emulate Mr. Shilubane’s example and to do their lot to alleviate the human rights burden in this country for the under-privileged, even if at times, to their financial prejudice. That is the price and sacrifice that is at times required to be made so that the lot of others than ours are bettered and uplifted. That is a rich legacy worth leaving behind when we depart from this world.

One issue that I remarked about at the mention of the passing of Attorney C.J. Littler, is the apparent oblivion to, if not reluctance to invoke the provisions of section 46 of the Legal Practitioners Act, 1964, regarding the conferment of the title of King’s Counsel to worthy candidates, on the recommendation of the Chief Justice. This has not yet been done and cannot, from the nomenclature of the law-giver, be done post-humously. We are quickly losing persons who are eminently qualified for this honour and I say with no fear of contradiction that Mr. Shilubane, on account of his long and distinguished service to the people of this country, clearly fitted the bill. Purely legal, not political or other irrelevant considerations should inform the choice of the worthy candidates, I submit.

Mr. Shilubane has run the race set before him and has carried the legal cross and banner in a most worthy manner. I take this opportunity to thank the entire Shilubane household for sharing with us this precious gift. Your loss is indeed our loss and so is your pain ours as well. May his soul rest in eternal peace! Robala ka khotso!