As judges and their work become increasingly controversial across Africa, this case offers a timely reminder: it is extremely difficult to bring a successful civil case against a judicial officer for something he or she has done in the exercise of judicial power.
Former prisoner Bheki Shongwe wanted to sue the principal magistrate at the Mbabane magistrates courts, Fikile Nhlabatsi, in her official capacity. Shongwe also named the commissioner general of correctional services, the national commissioner of police and the attorney general as defendants in his action.
In October 2018, Shongwe claimed E2,920,000 against all the defendants for damages, saying he had been wrongly deprived of his personal liberty when his imprisonment was extended for a period.
The case goes back to September 2016 when Shongwe was convicted of indecent assault and Nhlabatsi, the presiding officer, sentenced him to five years in prison or a fine of E5,000
The high court reviewed this sentence and though the five-year sentence was confirmed, the high court suspended four of those years. In addition, the high court decided that Shongwe should not be given the option of a fine.
According to Shongwe, his one year behind bars was up on 8 September 2017, but he was not immediately released. Instead, his prison term was extended a further five months ‘without any lawful authority or detention order’, and ‘without any committal warrant or court order’. This resulted in the extension of the deprivation of his personal liberty, he said, and he now sued for damages as a result.
But there had indeed been a legal basis for Shongwe’s extended imprisonment. When the high court reviewed the indecent assault sentence, it also ordered that he undergo counselling sessions while in prison. At the end of the year's imprisonment a report of the counselling progress was to be prepared and sent to Nhlabatsi, and the magistrate was ordered by the high court to ‘assess the counselling report’ at that point. Then she was to advise whether ‘further remedial action was necessary’. According to the high court, that ‘remedial action’ could include further counselling ‘or any such order’ as the magistrate considered necessary.
When Shongwe’s sentence was up, that is exactly what happened.
Magistrate Nhlabatsi was provided with an official report of Shongwe's progress as the high court had ordered. After she read the report of his counselling sessions, however, Nhlabatsi said that a further period of imprisonment was necessary so that he could make more progress with his counselling work.
Having established that the extension of Shongwe’s prison time was sanctioned by the magistrate acting in terms of the high court review, Judge T L Dlamini - who heard the case in which Shongwe claimed damages - noted the next important point: Counsel acting for Shongwe conceded that Magistrate Nhlabatsi was ‘discharging a judicial function’ when she ordered that he be further detained in prison.
‘A judge or any person exercising judicial power is immune from any action or lawsuit for anything done or omitted to be done while exercising this judicial power,’ the judge said, and quoted this section from the constitution of Eswatini: ‘A judge of a superior court or any person exercising judicial power, is not liable to any action or suit for any act or omission by that judge or person in the exercise of the judicial power.’
In this case, principal magistrate Nhlabatsi was exercising a judicial function when she ordered that Shongwe be further detained. This meant she could not be held liable for any act committed in the exercise of her judicial function.
As the defendants correctly pleaded, said Judge Dlamini, the particulars of Shongwe’s claim did not disclose a cause of action. In addition to dismissing the case, Judge Dlamini awarded costs against Shongwe.
All of which is most interesting, but reading the facts and the court's decision it seems quite a simple matter, resolved relatively easily. It is therefore not clear why the judge took 11 months to reach this conclusion and deliver the judgment.