Swaziland: Chief justice in stand-off with senior lawyer

22 February 2019 · Carmel Rickard

ONE of Swaziland’s longest-serving attorneys has been banned by the chief justice from appearing in court or even lodging court papers. The chief justice says the attorney was in contempt of court because he disobeyed court orders to pay maintenance in a case where he was executor of an estate. Now the attorney has fired back, saying the move was unconstitutional and that he was denied a hearing: he wants the CJ investigated for misbehavior – and he wants to sue.

This is one of the most bizarre matters I have ever come across. First, it involves a decision by the chief justice of Swaziland effectively banning a lawyer from litigating in that country’s courts. And then, in response, the lawyer concerned has asked the minister of justice to convene an ad hoc committee to investigate whether the chief justice is guilty of serious misbehavior.

The case concerns Siboniso Dlamini, 63, who has been a practicing lawyer for 38 years. He was the executor of an estate involving a widow, Phindile Ndzinisa, that produced several subsidiary disputes over a number of years.

On 9 April 2018 Dlamini appeared in the supreme court before three judges, among them the chief justice, Bheki Maphalala. The case had nothing to do with the Ndzinisa matter. At the start of the hearing the chief justice said that there had been two supreme court judgments against Dlamini with which Dlamini had not complied. He (the chief justice) had thus taken the firm decision to bar Dlamini from further appearing in the law courts of Swaziland.

That evening, the chief justice wrote to Dlamini, referring to the directive given in court. “(Y)ou are debarred from appearing before all the courts of Swaziland”, he wrote. This was in view of the two judgments of the supreme court finding Dlamini in contempt of court for failing to pay Ndzinisa ZAR910 018.99 (more than USD 67 000) and ordering that he be “committed to goal” for 30 days, suspended on condition that he comply and pay the money, with a copy of the judgment of committal to be sent to the law society for further action.

The chief justice noted that the money had not been paid and that he was disappointed that the prison authorities had not arrested him as they should have done and that the law society had taken no steps against him. “It is further disappointing that the order for committal has not been complied with by the department of correctional services”. It was also “disheartening” that the law society had not acted despite the “suffering being experienced by the widow, Phindile Ndzinisa, who is (living) in abject poverty.”

In the exercise of his power as chief justice he therefore directed that Dlamini be debarred and “shall not appear in all of the courts of Swaziland until such time that you have purged your contempt”.

The letter was copied to all the judges of all the Swazi courts, the attorney general, and other key officials.

Dlamini subsequently tried to bring an urgent application against the chief justice to set aside his debarring, but the registrar refused to issue a case number on the instruction of the chief justice.

He then wrote to the Human Rights Commission and to the minister of justice, explaining that he believed his rights had been violated as he had been given no hearing before being debarred. According to Dlamini, he had been ordered to pay maintenance despite the fact that there was no money left with which to pay, since there had been other Ndzinisa expenses that needed to be covered.

He had no response, and has now written an official complaint to the minister, saying he has a constitutional right to represent himself and challenge the chief justice for abuse of authority and public office.

He asked for an ad hoc committee to be set up to investigate the chief justice's “serious misbehavior”. He also asked the minister whether the present Judicial Service Commission, which would be involved in such an investigation, was “properly constituted”. Dlamini said he was “under the belief that the present sitting JSC is unconstitutional as its term of office came to an end in May 2017.” Since the minister was responsible for appointing members of the JSC, he requested that the minister sort out the problem of the constitutional validity of the JSC so that he could lodge his complaint with that body.

In his formal letter of complaint, he said that the chief justice had infringed his (Dlamini’s) rights to access to justice and to practice his profession. By refusing to allow him a case number in a matter where he is a respondent, the chief justice was "attempting to defeat the ends of justice” and he had taken the decision to bar him from appearing in court without giving him a hearing.

Speaking from Gauteng, where he is being treated for a medical condition, Dlamini said he had not yet received any answer to the letter he had written to the minister.

On July 5 a firm of attorneys acting for Dlamini wrote to the Attorney General of Swaziland giving notice that Dlamini was claiming R3.4m (USD 250 000) in damages from the AG. The letter adds that on 9 April 2018, “in open court and in the presence of the public and journalists” the CJ announced he was “banning and barring” Dlamini from appearing in any Swazi court to represent clients as a legal practitioner, with immediate effect.

This was illegal and unconstitutional, said the letter, “in that there is no law authorizing the Honourable Chief Justice so to ban, bar and impede” Dlamini from practicing his profession.

As a result Dlamini’s reputation was unlawfully injured and legal proceedings would be instituted.

The following Swaziland judgments are discussed above:

*This is the third of three Jifa articles in the 6 July 2018 edition of the newsletter, focusing on challenges to the powers of regional chief justices over the last week.

Carmel Rickard

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