IN THE HIGH COURT OF SWAZILAND HELD
MBABANE CIVIL CASE NO. 1431/94
NHLANHLA MLUMBI KUSH VILAKATI
THE CHAIRMAN OF THE JUDICIAL SERVICE
COMMISSION 1st Respondent
THE ATTORNEY GENERAL 2nd Respondent
In this matter the applicant who is a senior magistrate at Siteki in the Lubombo region seeks an order in the following terms :-
(1) restraining and interdicting the Respondents from carrying out a disciplinary inquiry in terms of Regulation 26 of the Judicial Service Commission Regulations and directing that the first Respondent should proceed in terms of Regulation 20 (3) of the same regulation whereafter he shall cause Applicant to be re-instated as Senior Magistrate for Lubombo.
(2) that paragraph (1) operates with immediate effect as an interim interdict pending a return date to be fixed by this Honourable Court for the Respondents to show cause why paragraph (1) cannot be made final and why Respondents should not be made pay the costs of this application.
The application is opposed by the Chairman of the Judicial Service Commission, the first Respondent and the Attorney General who is cited as the second Respondent.
It would appear that the Applicant was charged on a charge of theft of a motor vehicle and on the 7th February, 1994 he was admitted to bail. The first Respondent on the 8th February, 1994 in terms of Regulation 21 of the Judicial Service Commission Regulations of 1968, interdicted the Applicant on two thirds of his salary in terms of Regulation 20 (2). On the 15th June, 1994 the criminal trial was finalised and the Applicant was then acquitted on all counts preferred against him. However, the first Respondent deemed it advisable in terms once more of the regulations read with the Judicial Service Commission Act, to interdict the Applicant and to institute a disciplinary hearing into the conduct of his affairs, basically, so it appears to me, by reason of the fact that it is believed that the applicant has been consorting with a known criminal alleged to be one Ace Kunene. It is by reason of this information which became available that the first Respondent decided to institute the disciplinary proceedings and by reason then of that fact was the Applicant placed under interdiction.
The point was made this morning that firstly, this Court has no jurisdiction to entertain the application since in terms of Section 8(1) (a) of the Act the Commission and its members are protected from legal proceedings. Section 8(1) (a) reads as follows :-
"The question whether a Commission has validly performed any function vested in it by this act ......shall not be inquired into by any Court.
The point seems to me to be well taken in that and more particularly at this stage this court cannot inquire into the validity of the proceedings which are about to be instituted. It is correct, as had been suggested by
counsel for the Applicant, that in terms of Section 2 of the High Court Act, jurisdiction is conferred upon this court to deal with each and every matter which comes before it. However, in view of the very specific terms of Section 8(1) of the Judicial Service Commission Act 1982 that jurisdiction does not extend to these proceedings and the members of the commission when they act in terms of the Act.
However, even if I am wrong on that score, which I believe I am not, then in any event it falls to be decided whether a case has been made out which would entitle this court to interfere at this stage. In terms of Section 20 (1) of the regulations enacted in terms of the Judicial Service Commission Act, the present Respondent is entitled to, whenever proceedings for the dismissal are being taken or about to be taken or if criminal proceedings are being instituted against the judicial officer, if he considers that the public interest requires that the judicial officer should cease to exercise the powers and functions of his office, interdict the officer from the exercise of those powers and functions. There is nothing on the papers which will indicate that the first Respondent acted in any manner other than in terms of the provisions of Regulation 20 (1). It is not suggested that he acted irregularly in so doing nor is it suggested that he has acted with malice or mala fides.
The interdiction was made as a result of the fact that the first Respondent seeks, in his capacity as the Chairman, to investigate the affairs of the Applicant and more particularly his consort with a known criminal, a person who has a criminal record. There is nothing to indicate that the issues involved in that case or in that hearing will be the same as those involved in the criminal proceedings which
were conducted and which resulted in the applicant being acquitted on all charges. These are two totally different claims made by the Commission and clearly the same facts do not apply There is similarly nothing to suggest that the commission has acted irregularly or that it is acting with malice or that mala fides in whatever form are present.
Regulation 26 (1) reads as follows, "when the Chief Justice considers it desirable that disciplinary proceedings be instituted against any judicial officer on the grounds of misconduct which if proved would in the opinion of the Chief Justice justify dismissal from judicial office after such preliminary investigation as may be necessary to be made, and after consulting the Attorney General as to the terms of the charge, the Chief Justice shall cause to be forwarded to such judicial officer a statement of the charge framed against him and a brief statement to the allegations in so far as they are not clear from the charge on which each charge is based and call upon such officer to state in writing before the day to be specified by the Chief Justice, any grounds on which he relies to exculpate himself".
Once more I have to repeat that nothing has been shown that the Chief Justice, being the first Respondent and Chairman of the Commission,, acted in any way untowardly in the exercise of his discretion which is conferred upon him in terms of Regulation 26(1). What is going to happen is that the disciplinary hearing will take place. It is submitted that the Applicant will suffer irreparable harm or prejudice if he is not immediately re-instated. That of course is not correct. The true facts are simply that the Applicant will have to appear before the disciplinary hearing. If he is acquitted and no finding is made against him he will obviously be re-instated with full benefits and
more particularly that of his salary. On the other hand if he is found guilty of the misconduct complained of he will then be dealt with in terms of the provisions of the act. There can be no suggestion whatsoever that he is being prejudiced in any manner. It has also been suggested that there is a lot of uncertainity about the pending disciplinary hearing. I am informed and from what I gather from the file before me, the disciplinary hearing has been scheduled for hearing and until such time as that takes place obviously the Applicant is entitled to consult with his lawyers and to obtain such legal advice as is necessary in order to prepare for the trial. Unfortunately this may be accompanied with some form of frustration. It may be accompanied by some form of distress but those are matters which are unavoidable and which does not entitle this Court to summarily dismiss the disciplinary hearing and to declare whatever has been done so far to be null and void. Those are simply not justifiable grounds upon which this court can interfere with the contemplated action which the respondents seek to institute.
In the circumstances the application is dismissed with costs.