On Monday 3 November 2014, the Swazi Supreme Court heard two appeals in the Thulani Maseko and Bheki Makhubu series of litigation. Maseko, a human rights lawyer, and Makhubu, the editor of The Nation magazine, were convicted of contempt of court earlier this year, and sentenced to a two-year jail term by Judge Mpendulo Simelane. Before their criminal trial commenced, Maseko and Makhubu had brought an application seeking a declaration that their arrest and detention was unlawful and unconstitutional on the grounds that the authorities had not followed the correct procedure. Judge Dlamini, in the High Court, had found in their favour, and ordered that they be released. Soon after their release from custody, the judge presiding over the criminal trial, Judge Simelane, ordered that Maseko and Makhubu be rearrested, and then began their criminal trial almost immediately.
The two appeals heard on Monday were Maseko and Makhubu’s appeal to Judge Simelane’s order for their rearrest, and the Chief Justice’s appeal to Judge Dlamini’s order that Maseko and Makhubu be released.
Judges Ebrahim, Moore, and Maphalala heard the first matter. They immediately mentioned their concern that the record of the appeal was incomplete because there was no written judgment from Judge Simelane. Makhubu’s representative, Adv Lucas Maziya, explained to the Court that Judge Simelane had not issued a written judgment, and that therefore the absence of a judgment in the record was due not to an oversight by the appellants, but rather to an omission by the Judge. In any event, the Court ruled that it was not in a position to decide this matter as it would prejudice the appellants (Maseko and Makhubu) if the appeal was heard without evidence of what and how the judge in the High Court decided. The Court informed counsel that the matter would be postponed indefinitely, allowing for the appeal to be re-filed once the record is complete.
One of Adv Maziya’s objections to the postponement was that this delay would prejudice the appellants even more than having the appeal heard with an incomplete record. However, Judge Moore responded to this by asking counsel what options were available to individuals in the appellants’ position, and Adv Martin Brassey SC, appearing for Maseko, confirmed that such individuals could apply for bail pending the finalization of the appeal. Judges Ebrahim and Moore said that this bail application should be made on paper, and include all the relevant information, and stressed that, as in all cases where the liberty of individuals is involved, the matter should be resolved urgently.
The bench was then reconstituted to hear the Chief Justice’s appeal to the High Court decision that ruled that the arrest warrants and subsequent detention were unlawful and unconstitutional. Judge Levinsohn had replaced Judge Maphalala for this appeal. The Attorney-General’s legal representative, Adv Kunene – who appeared for all the government appellants in this matter – immediately raised the point that he believed that the petitions for the admission of South African counsel to represent Maseko were incomplete. He said that the petitions had not been served on the Attorney-General, and that if they had been the Attorney-General would have objected to them because the requisite formalities had not been complied with. Adv Kunene initially said that it would be impossible for the Attorney-General to provide the necessary certification that day, but Judge Ebrahim said that as the Chief Justice had approved their admission, the formalities could be complied with by supplementing the petitions with the missing certificates at a later stage. The South African counsel in question, Maseko’s legal representative, Adv Brassey, said that as the Attorney-General was a party to the litigation it was improper to require him to consent to their admission in any event. At this stage Judge Levinsohn accused Adv Kunene of simply putting up roadblocks to the continuation of the trial.
Adv Brassey SC handed up the Heads of Argument from the bench, and Adv Maziya, Makhubu’s representative, informed the Court that he had not prepared Heads of Argument but that he could submit them the following day. The Judges agreed that the matter could proceed on this basis.
Adv Kunene argued that the High Court simply did not have jurisdiction to review the decision of a judge of its own bench. He said that as the Chief Justice was acting as a judge of the High Court when he issued the arrest warrants a High Court could not set aside those decisions. The government appellants also argued that if a High Court was going to review its own decisions it had to sit as a full bench (of three judges) rather than a single judge as Judge Dlamini had done. Maseko’s Heads of Argument had pointed out that Maseko and Makhubu had requested, in writing, that a full bench of the High Court be formed in order to hear the matter, and that the Chief Justice had indicated, also in writing, that this was not necessary. Adv Kunene argued that Judge Dlamini was incorrect to rely on these letters between Maseko and Makhubu and the Chief Justice and Registrar of the Court in her judgment because the state parties had not had sight of them.
Adv Kunene also argued that contempt of court is sui generis and as such does not fall within the boundaries established by the Criminal Procedure and Evidence Act. This meant that the Court is allowed to devise procedure when its integrity is at risk, and it does not have to follow the regular process of ensuring that an application is made before a Judge can issue a warrant of arrest.
Adv Brassey argued that the case turned on a mischaracterisation of Judge Dlamini’s judgment as a review of any judicial decision. Adv Brassey said that it was actually a reconsideration of a procedural ex partedecision (a decision taken with only one, and not all, parties to the matter present) and he confirmed to Judge Levinsohn that it was true that there is a common law right to revisit a decision of a judge made ex parte. This is because of the audi alterum partum rights which protect the right of all people to be heard in any legal proceeding, and which are limited by the nature of ex parte hearings simply because they do not involve both sides.
The Judges appeared to be concerned about the distinction made between the procedure judges should follow when they are the subject of contempt in court compared to outside of court. The example of a judge being insulted during a hearing and then taking immediate action to protect the Court’s integrity and to ensure the case proceeds as it should, is an example of a judge acting ex parte and doing so correctly. Adv Brassey said that a Court is competent in certain circumstances to make an ex parte order, but it must be happy that the circumstances justify the departure from the audi rights. He said that it is only in limited circumstances that this is appropriate, and that the further away physically from the court hearing that the alleged contempt is, the less likely the circumstances are going to be such that justify this departure. Adv Brassey also referred to the South African Constitutional Court case of S v Mamabolo which emphasized that the offence of contempt should not be used as a vindication of individual judges’ reputations – it must be narrowly interpreted to protect the integrity of the court as an institution rather than of individual judges.
This led to a light moment in court as Judge Moore referred to Judge Kriegler’s seminal judgment in Mamabolo and the gallery all sought out Judge Kriegler who had attended the hearing as an observer. Judge Kriegler’s presence was certainly noticed by the judges, as well as by all who attended the hearing and he became a celebrity, with many people seeking to have their photograph taken with him.
Adv Brassey said that a matter remains ex parte until the respondents are given an opportunity to be heard – and that therefore, until this happens, the judicial decision is subject to reconsideration by another court.
Judge Levinsohn said that in his home jurisdiction of KwaZulu Natal in South Africa this matter would have proceeded by way of the Chief Justice issuing a rule nisi which would have called on the respondents to come to court and explain why they should not be convicted of contempt of court. This procedure provides the accused with an opportunity to be heard – as is required by the audi rights. Adv Brassey referred to authority mentioned in his Heads of Argument that confirmed that this was the established practice in Swaziland as well.
Adv Maziya then stood up to argue for Makhubu. He aligned himself with Adv Brassey’s position on jurisdiction; that the High Court was entitled to review and set aside the Chief Justice’s decision. He said that it was important to distinguish between a judge issuing a warrant for arrest of a person who fails to appear in a court hearing, and issuing a warrant for arrest issued ex parte in chambers (as had happened in this case). He said that in the first case it was clear that the judge would be exercising a judicial power, but in the second, he would be exercising a “semi-administrative” power. Judge Levinsohn questioned whether something could ever be “semi”-administrative power, and Adv Maziya said that this was accepted in Swazi law.
Judge Moore pressed the point that a judge sitting in chambers is equivalent to a judge sitting in Court, but Adv Maziya did not accept that this was true in all situations.
The judges then reserved judgment and adjourned.
In the hours following this adjournment Maseko and Makhubu’s legal representatives ensured that the application for bail based on the postponement of the first appeal was filed with the Registrar of the Supreme Court as well as with the Director of Public Prosecutions (DPP). The DPP’s office lodged a notice of intention to oppose the application, and raised a point of law that the bail application could not proceed in the absence of a complete record of the trial. All the legal representatives attended to the Judges in chambers, who requested counsel for both sides to supplements their papers with case authority, and said that that they hoped to hear the application at 13h00 the following day (4 November 2014).