The International Commission of Jurists (ICJ), the Southern Africa Development Community Lawyers Association (SADC LA) and the Southern Africa Litigation Centre (SALC) note that the Swaziland Judicial Services Commission (JSC) met on Friday, 19 August 2011, a full week after the hearing of the charges against High Court Justice Thomas Masuku. Yet no decision has been communicated nor have reasons been provided by the JSC for the rulings made during the JSC’s hearing of 11 August 2011.
The ICJ, SADC LA and SALC believe that the failure on the part of the JSC to expeditiously resolve the Judge Masuku matter, when his hearing involved such obviously misdirected and unsubstantiated charges, only further underlines the judicial crisis existing in Swaziland.
The three aforementioned organisations, dismayed at the unfairness and irregularity of the initial charges put to Judge Masuku and of the subsequent hearing and attendant process, wish to reiterate their concern at the following aspects:
The initial twelve charges put to Judge Masuku were so vague and unsubstantiated as to create the impression they were spuriously motivated. As it transpired, one of the charges was formerly withdrawn – in all probability because the Chief Justice was threatened with defamation proceedings by the judicial colleague with whom Judge Masuku was alleged to have engaged in an “illicit affair”. Three other charges, although not formerly withdrawn, were abandoned in that no attempt was made to enter evidence in support of these charges.
?The Chief Justice conducted himself improperly in serving as the main complainant against Judge Masuku and as Chairperson of the JSC, which heard and will decide on the merits of the complaints. Chief Justice Ramodibedi’s conduct during the hearing – rejecting all applications made by defence counsel, including that he recuse himself, without attempting to provide reasons – was consistent with the apprehension that he would fail to deliver justice impartially.
The refusal on the part of the JSC to have the matter heard in public, despite Judge Masuku’s express request that this happen, was in clear contravention of Swaziland’s Constitution which provides that: “All proceedings of every court or adjudicating authority shall be heard in public.”
The refusal of the JSC to permit delegations of judges, local and foreign, access to the hearing so that they might observe and monitor the proceedings, created the impression of a clandestine, punitive process.
The extensive security 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 refusal on the part of the JSC to permit Judge Masuku’s counsel to cross examine the deponents to the affidavits provided by the JSC, again without reasons being furnished, left allegedly incriminating evidence untested. It should be noted that the South African Supreme Court of Appeal recently ruled on disallowing cross-examination by the South African Judicial Service Commission in a case involving alleged judicial misconduct, finding:
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.
Freedom under Law v Acting Chairperson: Judicial Service Commission and Others 2011 (3) SA 549 at para45.
Although not bound by South African precedent, it is hard to see how a Swazi court could reason differently.
The ICJ, SADC LA and SALC take note of the statement issued by the Law Society of Swaziland in response to Judge Masuku’s hearing and associate themselves therewith. In particular, the three organisations share the Law Society’s view that the “decision to disallow a public hearing only served to enhance negative perceptions of the Judiciary and the administration of justice in general”. In addition, they join the Law Society’s call for complaints against the Chief Justice to be properly processed and considered.
In conclusion, the ICJ, SADC LA and SALC are of the opinion that the proceedings against Judge Masuku were irredeemably flawed and they call upon the judicial and political authorities in Swaziland to expeditiously address the judicial crisis, and fairly rsolve the matter of Judge Masuku.