SHHH!: The JSC has warned against commenting on the contempt of court case against incarcerated Human Rights Lawyer Thulani Maseko and The Nation Magazine Editor Bheki Makhubu.
THE Judicial Service Commission (JSC) has warned members of the public and organisations against commenting on the contempt of court case against incarcerated Human Rights Lawyer Thulani Maseko and The Nation Magazine Editor Bheki Makhubu.
In a statement issued yesterday, the JSC said in so far as the pending contempt proceedings were concerned, it should caution that it was inappropriate for anyone to comment on them at this stage.
The JSC said members of the public and organisations must realise, however, that contempt of court in this jurisdiction was one of the most serious offences against the administration of justice.
“It is for that reason that it is not protected as a right of freedom of expression under section 24 (3) (b) (iii) of the Constitution,” explained the JSC.
“On the contrary, this section plainly provides a limitation to freedom of expression in order to maintain the authority, dignity and independence of the courts.
“We observe that in the United States of America the offence of contempt of court was abolished in the case of Bridges v State of California 314 US 252 (1941). It will be seen, therefore, that those who seek to copy the American system on this are misguided.” The JSC said in this jurisdiction freedom of expression was subject to respect for other people’s rights.
“It is not absolute as the progressive organisations and other like-minded persons seem to suggest,” said the JSC. On Tuesday, Maseko and Makhubu were remanded back into custody until Wednesday. They have already spent 16 days in custody at the Sidwashini Correctional Services without being granted bail by the High Court.
By Wednesday, they would have spent 22 days behind bars.
The defence team applied in vain to have them released from custody on their own recognisance and further be served with summons when they are required to make a court appearance.
Maseko and Makhubu were arrested two weeks ago and later arraigned for the Chief Justice Michael Ramodibedi in his chambers. They are facing contempt of court charges relating to articles published in The Nation Magazine condemning the arrest of Government Chief Vehicle Inspector Bhantshana Gwebu, when the case was still sub judice (pending in court).
Gwebu was arrested in January, for having detained an ‘unauthorised’ government vehicle in which High Court Judge Esther Ota was being chauffeured near Sifundzani Primary School in Mbabane. It is alleged that Judge Ota was going about her official duties. There is a pending contempt of court case against Gwebu at the High Court. Makhubu and Maseko’s arrests have been received with mixed feelings by the international community and the local civic organisations.
A number of foreign organisations including human rights have issued statements expressing concern about their arrest.
The United States Embassy issued a statement, where it expressed concern over the duo’s detention and urged the judiciary to recognise its obligation to uphold the rule of law and the Kingdom’s constitution regarding the protection of fundamental rights and freedoms. The International Commission of Jurists, SADC Lawyers Association (SADC LA) and the Southern Africa Litigation Centre expressed deep concern at the irregular arrests and detention of the duo. Other concerned organisations are Amnesty International, Botswana Centre for Human Rights, Lawyers for Human Rights Association (Swaziland), the Law Society of Swaziland, the delegation of the European Union (EU) and Media Institute of Southern Africa (MISA), to mention but a few Businessman Walter Bennett lamented that there was too much in the judiciary for one day’s work, putting more emphasis on the endless detention of Maseko and Makhubu.
‘Payment of allowances in order’
THE JSC said the Industrial Court of Appeal was fashioned along the similar lines as the Supreme Court in terms of payment of allowances.
The commission said crucially all High Court Judges either presently sitting, dismissed, redeployed or deceased, with the exception of the newly-appointed Judge Mpendulo Simelane, have all had the opportunity of being appointed acting Judges of the Industrial Court of Appeal for diverse sessions of that court.
The JSC stated that they drew sitting allowances above their monthly salaries for the particular period that they sat. “The record is available for anyone who may desire to see it,” said the JSC.
“It is also imperative that we state here that this practice, both in the Supreme Court and Industrial Court of Appeal, is not a recent one. It continued during the tenure of Banda CJ and was inherited by Ramodibedi CJ upon his appointment. It is not a product of Ramodibedi CJ as some would maliciously like the world to believe.”
The JSC said the allowances were lawful and had always formed part of the terms and conditions of these judges.
Judge Mpendulo a shining star - JSC
THE Judicial Service Commission (JSC) said High Court Justice Mpendulo Simelane was a good Judge and had a good understanding of the law.
The JSC, in a statement, said this was proved by the fact that within a month of his appointment he had already delivered four well canvassed judgments. “The learned judge has with ease featured on the motion court roll hearing contested, uncontested and Bails/Rule 45 applications,” said the JSC.
“These are very heavy rolls but he has handled them expeditiously and with relative ease. In these circumstances the publication (Sunday Observer) is misleading and highly contemptuous.
“We want to bring it to the attention of the readership that the judge was properly appointed in terms of the Constitution of Swaziland. He was admitted as an attorney of Swaziland in February 2004. He had practised as an attorney whilst in the Director of Public Prosecutions Chambers appearing at the Magistrates Court, High Court and in the Supreme Court.”
The JSC said Justice Simelane did a sterling job as Senior Crown Counsel and Registrar of the High Court in which office he was still a practitioner. Justice Simelane’s appointment has been met with a lot of misgivings by the legal fraternity which feels he is not yet ripe for the position.
Resident Judges entitled to sitting allowances
THE Judicial Service Commission (JSC) said the resident Judges of the Supreme Court were legally entitled to sitting allowances and no irregularity was being committed by the Judiciary in this regard.
The resident judges in question are Justices Bheki Maphalala and Esther Ota, who also sit in the High Court.
The non-resident judges of the Supreme Court are Justices Stanley Moore, Dr. Seth Twum, Ahmed Ebrahim and Phillip Levinsohn. The JSC explained, in a statement, that since time immemorial both resident and non-resident judges of the Supreme Court had been lawfully paid the said allowances. “It is a benefit which in terms of section 141 of the constitution cannot be taken away from them,” stated the JSC.
“In the case of His Lordship, the Chief Justice (Justice Michael Ramodibedi), his contract provides for payment of both salary and sitting allowances.
Section 141 (6) of the Constitution provides that the salary, allowances, privileges and rights in respect of leave to absence, gratuity, pension and other conditions of services of a judge of a Supreme Court shall not be varied to the disadvantage of that judge.
“It is common cause that the resident judges of the Supreme Court have been assigned by the Chief Justice to sit at the High Court in terms of section 150 (1) © of the constitution due to the shortage of High Court Judges in dealing with the backlog of cases. “This does not make them High Court judges but they retain their status of being Supreme Court Judges.
It is, therefore, lawful that judges receive both salaries as well as sitting allowances in discharging their duties in the Supreme Court.
“In terms of Section 145 (1) of the constitution, the Supreme Court comprises the Chief Justice and not less than four other Justices of the Supreme Court. High Court Judges are therefore not judges of the Supreme Court in terms of the Constitution; hence cannot demand as of right to sit in the Supreme Court.”
The JSC, reacting to a newspaper article, said it was, therefore, misleading, misconceived and mischievous to insinuate that resident judges of the Supreme Court should rotate with Judges of the High Court.
“Resident Judges of the Supreme Court sit together with non-resident judges during Supreme Court sessions; hence, it would be inconceivable that they would be remunerated differently when discharging the same duties,” explained the JSC.
“Similarly, the Chief Justice as head of the judiciary has the power to determine not only the two sessions of the Supreme Court but special sitting of the Supreme Court in accordance with Section 142 of the constitution as well as the Court of Appeal Act.