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When “straying” courts need to be “reined in"

HERE is a rare situation: three judges of Swaziland’s highest legal forum, the supreme court, confessing they are at a loss to understand what is happening in the courts below. This after two high court judges issued contradictory orders in relation to a bail hearing and the supreme court was asked to intervene and sort out the mess. Did the supreme court have the power to do so? It was a novel question, testing certain of its constitutional powers for the first time.

High court protection "doesn't filter down to the lower courts" so this Jifa Alum declared magistrates court processes unconstitutional

NAMIBIAN high court judge Shafimana Ueitele , has been dealing with a sensitive case of injustice: a woman lost her home because the Magistrates Court Act did not give her the protections she would have had under the High Court Act. What should a court do when – as here – the law results in such blatant inequality, causing suffering and injustice? For Judge Ueitele, a JIFA alum, the answer was obvious: declare the relevant part of the law unconstitutional . The existing system meant that not all litigants were equal, he reasoned, and the only way to end the injustice was to ensure that the system itself was changed.

Lesotho’s acting chief justice slows pending litigation brought by sidelined Chief Justice

THE judicial crisis in Lesotho shows no signs of resolution. While the suspended Chief Justice waits in limbo for a tribunal to investigate government claims against her, the acting chief justice has stepped in to stamp her authority on the situation. Among others, the actions of the ACJ have slowed a planned constitutional court hearing scheduled to deal with the dispute between the government and the CJ.

Swaziland: Chief justice in stand-off with senior lawyer

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.

Traditional king ordered to appear in court and testify about his decisions

High court judge, Maphios Cheda, was faced with a tricky issue earlier this month. A group of Namibian traditional leaders, ousted by the King after allegations of misconduct and other “transgressions”, challenged the King’s decision to remove them and appoint other traditional leaders in their place. The suspended leaders said the King was of advanced age and no longer able to make decisions on his own. They believed the decision to suspend them had not in fact been made by the King, and they wanted the court to order that he come to court and be examined on the origins of the letter sent to the suspended leaders under his name. Faced by the strong claim that the King had “mental challenges”, what was the court to do?

“Astute and thorough” judgment on trafficking by Namibia’s Judge President
“Astute and thorough” judgment on trafficking by Namibia’s Judge President

ATTENTION judges who attended Jifa’s advanced course on international human rights law in Cape Town earlier this month. During the training week, Jifa discussed a recent decision by Namibia’s Judge President Petrus Damaseb with expert course trainer, Peter Carter QC. We asked for Carter’s comments on the judgment in the context of the course, namely that any judge – not just a specialist court – might find themselves in a position to consider applying international Protocols. What would other judges be able to learn from the judgment, we wondered. Take a look at the judgment – the accused was charged with rape and trafficking – and at how Judge Damaseb invoked the Palermo Protocol of 2000 (the UN Protocol to Prevent, Suppress and Punish Trafficking in Person, especially Women and Children). Then see the trainer’s comments.

Traditional leaders in Malawi win against property developer who hid information from court

TRADITIONAL leaders in Malawi’s Chikwawa district have won a significant court victory over a developer. This after he asked for judicial help in throwing a local community off land where they have lived for many years – but failed to disclose key facts to the court. An initial injunction against the local community was granted earlier this year, but then it emerged that he hid important facts in his original application, brought without notice to the traditional community. When Judge Kenyatta Nyirenda discovered the full story, he commented on the “sheer effrontery” of the application, and threw it out.

Seychelles CJ Mathilda Twomey cleared of all charges by top tribunal

AFTER many months of unpleasantness, uncertainty and threat of impeachment, Chief Justice Mathilda Twomey of Seychelles – the first woman to hold this position in her country – has been completely exonerated by a tribunal of inquiry. The tribunal’s report, published on Friday, was written by three prominent jurists: recently retired Australian judge Michael Adams, SA judge John Murphy and Nigerian judge Olufunmilayo Atilade. Their report closely examines the complaints against her made by her fellow judge, Durai Karunakaran, and unanimously concludes that his complaints are entirely baseless. They find her actions were all proper, professional and, in the circumstances, even what was required of her.

African Court awards compensation for rights violations to Rwanda’s “Nelson Mandela”, Victoire Ingabire

When Victoire Ingabire was released from jail during September 2018, some of her many followers described her as the “Nelson Mandela” of Rwanda. She immediately called for other political prisoners to be freed in addition to those released with her. She said she was prepared to return to prison if that was the price to be paid to win freedom of speech and human rights in Rwanda. This week the African Court on Human and Peoples’ Rights awarded Ingabire significant reparations for the infringement of her rights by Rwanda and ordered that state to pay the reparations in full within six months or face escalating interest.

Essentials of Akamba customary marriage

Customary Law  – Akamba customary law – Akamba customary marriages – existence of Akamba customary marriages – when was Akamba customary law marriages deemed to be in existence – ntheo ceremony - whether a woman whose ntheo had not been paid could receive ntheo for her daughter Jurisdiction  - jurisdiction of Magistrates Court - burial disputes - whether the magistrate Courts had the jurisdiction to hear and determine burial disputes -  Magistrate’s Court Act No. 26 of 2015 Section 7(3)(b)