An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
South Africa recently granted a R2.5 billion bailout to the government of Swaziland’s King Mswati III to stave-off a financial meltdown in that country. However, news reports suggest that the king and his government (headed by Prime Minister Sibusiso Barnabas Dlamini) has now cooled to the idea and left the Memorandum of Understanding (MOU) associated with the loan unsigned and the loan in limbo.
The first tranche of the three-tranche loan was scheduled to be released in August 2011, but among the loan conditions were “confidence-building measures” on democracy, human rights and fiscal reform, as well as the “overhaul of its budgetary systems”. Although these conditions were criticised by the COSATU for being too vague and dismissed by pro-democracy activists in Swaziland as a “betrayal” of the Swazi people, the Swazi government nevertheless balked at the idea of actually having to become slightly less autocratic in return for receiving the handout from South Africa.
As far as we know, the South African government has therefore not yet transferred any money to Swaziland and is unlikely to do so in the near future.
And no wonder, because even the South African government — not a government who has had too many scruples about supporting tyrants and turning a blind eye to the oppression taking place in countries perceived to be “friendly” to South Africa — might have been slightly embarrassed by recent events in Swaziland.
Given the fact that unlike China (whom our government desperately wants to be exploited by and hence whose instructions we seem to slavishly obey no matter how embarrassing and unprincipled this might be), Swaziland is a small country with an annual budget only slightly bigger than the annual budget of the National Youth Development Agency, even the South African government might think it cannot afford to be seen to support the total subversion of the rule of law in Swaziland. Unfortunately our government has not made a statement regarding the status of the loan in the light of the seemingly unlawful dismissal of a Swaziland High Court judge.
This weekend Praveen Sham and Nano Matlala issued a statement on behalf of the Law Society of South Africa (LSSA) adding its voice to the utmost alarm expressed by the SADC Lawyers Association (SADCLA), the Law Society of Swaziland and other civil society organisations at the clear contempt for the rule of law and the debasement of Swaziland’s judicial system, signalled by King Mswati III’s removal of High Court Judge Thomas Masuku from office last week.
Last month, the LSSA joined other legal organisations calling on the Judicial Service Commission of Swaziland to hear the charges brought against Judge Masuku by Swaziland’s Chief Justice Michael Ramodibedi in public, which was not done. It was widely believed that the charges brought against Judge Masuku were vague, unsubstantiated and spurious. The charges included a claim that Justice Masuku had insulted the King in one of his rulings and that he had an illicit affair with a female judge.
Justice Masuku has been harassed and suspended in the past for challenging unlawful royal decrees. His rulings have helped protect human rights and his resistance to government pressure on the judiciary has been crucial to maintaining its independence.
As pointed out by the organisations observing the hearing, the disciplinary hearing itself was not conducted in compliance with fundamental principles of justice and fairness. The Chief Justice refused to recuse himself, notwithstanding the fact that he acted both as accuser and judge; the application for the hearing to be held in public was denied and the opportunity to cross-examine deponents to the affidavits attesting to Judge Masuku’s alleged misconduct was also refused. No reasons were provided for these decisions.
In response to these events, Swaziland’s lawyers recently took the unprecedented step of marching through the streets of Mbabane to highlight their frustration at the JSC’s unwillingness to receive their complaint against Chief Justice Ramodibedi. The march follows an instruction by the Chief Justice to the magistrates’ courts to proceed with criminal cases despite the lawyers’ current boycott of the courts which has resulted in the convictions of unrepresented accused.
The Law Society of Swaziland has complained about several directives issued by the Chief Justice. The most controversial one determines that no summons may be issued against the King’s office. This leaves several parties, including those who have engaged in commercial transactions with the King’s office, without remedy.
The Swazi Minister of Justice and Constitutional Development, David Matse, has been suspended, apparently because he refused to sign the dismissal letter of Judge Masuku.
South African newspapers have not given much attention to the events in Swaziland, perhaps because white farm owners are not involved in this fundamental attack on the rule of law in a neighbouring country. If this had happened in Zimbabwe it would have been splashed on the front pages of most newspapers. With the exception of the Mail & Guardian, I have not read anything in our media about the dismissal of the judge in Swaziland.
The Law Society should be commended for issuing a statement and for trying to draw attention to these events in a country who in theory is still in line to receive a huge loan from the South African government. It would be helpful if various Bar Councils add their voices to that of the Law Society to demonstrate that they, too, support the rule of law in neighbouring countries.
Our government should also state unequivocally that no loan will be granted to the autocrats in Mbabane unless judge Masuku is reinstated and unless Swaziland demonstrates a clear commitment to democratise.BACK TO TOP