MBABANE – The Southern Africa Litigation Centre (SALC) has raised a number of procedures that were flawed during the hearing of High Court Judge Justice Thomas Masuku on Thursday.
The SALC, in a statement released on Monday, said the hearing, which was conducted by the Judicial Services Commission and chaired by Chief Justice Michael Ramodibedi, ‘fell far short of international legal standards’.
Firstly, SALC said the affidavits on which the JSC sought to rely, from the Registrar of the High Court and Secretary of the JSC, were only given to the defence team on the evening prior to the hearing.
“The affidavits made plain that the accusation that Judge Masuku had engaged in an illicit love affair with a judicial official had been withdrawn although Judge Masuku’s legal team had received no formal correspondence to this effect. It is likely that the threat of institution of defamation proceedings against the Chief Justice by the judicial colleague named in the initial charge put to Judge Masuku compelled the withdrawal,” the organisation said.
Secondly, the regional legal watchdog referred to the JSC abandoning what were ‘arguably more serious charges’ against Judge Masuku in which the latter is said to have associated with those seeking regime change in Swaziland and that he sought to destabilise High Court judges and staff as well as touting himself as the Chief Justice.
“However no indication of formal withdrawal of the charges was made. These charges have potentially perilous personal repercussions for Judge Masuku – beyond his judicial standing – given Swaziland’s notoriously draconian legislation relating to the suppression of treason and sedition. The fact that they could be put to him without any attempt to substantiate these charges points both to the intimidatory nature of the proceedings against Masuku and the impunity enjoyed by the accusers,” the SALC said.
Furthermore, the organisation said arguments by Judge Masuku’s counsel to have the hearing held in public and for the CJ to recuse himself were also dismissed without reasons being furnished.
It said an application for postponement so that the decision to dismiss the above arguments might be reviewed was also rejected without reasons being furnished.
“In making these snap rulings, without attempt to provide reasons, Chief Justice Ramodibedi gave the impression that he was conducting himself as chief prosecutor and not an impartial adjudicator. It was this very apprehension that had led Judge Masuku’s counsel to apply for the Chief Justice’s recusal,” the statement said. The last point raised by SALC is the disallowing, without reasons being furnished, of Judge Masuku’s counsel to cross-examine the deponents to the affidavits provided by the JSC.
The organisation said it should be noted that the South African Supreme Court of Appeal recently made a ruling on disallowing cross-examination by the South African Judicial Service Commission in a case involving alleged judicial misconduct.
The SA Supreme Court of Appeal ruled: “Utilising this procedure (disallowing cross-examination) for the final resolution of a complaint of misconduct by a judge will always lead to a dismissal of the dispute where the conduct alleged by the accuser is disputed by the judge because the judge’s version can never be rejected without having given him an opportunity to cross-examine his accusers.”
SALC said, even though Swaziland was not bound by the South African precedent it was hard to see how the Swazi court could reason differently.
It added: “In conclusion, SALC is of the opinion that the proceedings were irredeemably flawed and calls upon the judicial and non-political authorities in Swaziland to expeditiously resolve the judicial crisis represented by the unsubstantiated charges put to Judge Masuku and the patently unfair hearing to which he was subject.”
CJ accused of breaching the Judges’ Oath of Office
MBABANE – The Chief Jus- tice Michael Ramodibedi has been accused of breaching the Judges’ Oath of Office in the manner in which he conducted Judge Thomas Masuku’s hearing.
The Lawyers for Human Rights allege that by being the complainant, witness, prosecutor and judge, the lawyers say CJ Michael Ramodibedi breached the Judges’ Oath of Office which stipulates that judges, ‘will do right to all manner of people accor-ding to the law without fear or favour, affection or ill will’. “We hereby join hands with the Law Society of Swaziland and all the Swaziland citizens in calling not only for the removal of the Chief Justice from office, but also all the members of the JSC. “Nothing more justifies their removal from office for they have acted contrary to the Consti-tution and betrayed the Oath of Office,” reads the statement.
… HEAVY POLICE PRESENCE CRITICISED
MBABANE – The heavy police presence during Judge Thomas Masuku’s hearing on Thursday has been criticised by the Southern Africa Litigation Centre (SALC).
“The extensive police presence in the High Court’s surrounds on the day of the hearing seemed expressly intended to intimidate the general public and thwart public access and was entirely inconsistent with the principle that courts of justice should be open and accessible to the general public,” the SALC said a statement released on Monday.
The organisation said Masuku’s hearing had generated considerable public interest and occasioned extensive media coverage and therefore the substantial police presence appeared invoked to limit the public’s and media’s access.
SALC also saw it improper that a delegation of local and foreign judges, along with visiting legal academics who wanted to observe the hearing, were barred from attending it.
“Even if there were grounds to exclude the general public and media from the disciplinary hearing, which SALC disputes, the exclusion of fellow judges and legal academics from the proceedings makes plain the punitive and secretive manner in which the JSC opted to conduct the hearing,” SALC said in the statement.
CJ and JSC not spared
MBABANE – The Chief Justice and the JSC have also been accused of breaching the United Nations Basic Principles on the Independence of the Judiciary.
The lawyers say Section 157 of the Constitution clearly provides that the CJ should have been replaced by the most senior justice of the Supreme Court.
Quite naturally, the CJ should have recused himself from the disciplinary proceedings. This is in line with international standards and in connection with UN Basic Principles on the Independence of the Judiciary (1985) which provides that; ‘All disciplinary, suspension or removal proceedings shall be determined in accordance with established standards of judicial conduct.
‘All disciplinary actions shall be based upon standards of judicial conduct promulgated by the law or in established rules of court’, the statement reads.