IN
THE HIGH COURT OF SWAZILAND
CIV.
CASE 2394/95
In
the matter between:-
THE
LAW SOCIETY OF SWAZILAND APPLICANT
and
THE
DIRECTOR OF PUBLIC PROSECUTIONS 1ST RESPONDENT
THE
COMMISSIONER OF POLICE 2ND RESPONDENT
CORAM: DUNN
A.C.J.
FOR
THE APPLICANT: MR. P. SHILUBANE
FOR
THE 1ST RESPONDENT: MR. K. KILIKUMI
FOR
THE 2ND RESPONDENT: MR. K. SIKHONDZE
JUDGMENT
3RD
NOVEMBER 1995
On
the 11th October 1995, the Principal Magistrate Mr ,Maphalala
addressed the following memorandum to the Registrar of the High
Court:-
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RE:
CIRCUMSTANCES LEADING TO LAWYERS PROTEST AGAINST SENIOR MAGISTRATE MR
BWONWONGA ON 9/10/95
I
refer to our telephone conversation of the 10th instant as regards
the above-subject matter and I wish to report as follows:
1. report
by the newspaper of the 10/10/95 is more or less factually correct
save to say that it is not correct that the incident began soon after
I had announced in open court that the Civil roll was to be handled
by Mr Bwonwonga (Senior Magistrate). The true position is that last
week on Thursday we arranged with Senior Magistrate Mr Bwonwonga that
we were going to alternate weekly in doing Civil work in this
Magistracy. We adjusted our diaries accordingly and was to draw up
the roll. The 9/10/95 was his turn and I had advised the Clerk prior
to make proper arrangements;
2. On
the 9/10/95 at 10.30 am. I was in my office doing some administrative
work when I heard some people talking in loud voices outside. I went
out to investigate where I was confronted by a large group of lawyers
numbering between 10 to 20 demanding a Magistrate. I could gather
from their mood that they did not want to appear before Mr.
Bwonwonga. On assessing the situation I beckoned
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them
to my chambers with a view to solve the problem in private to protect
the dignity of the court. I must say that the group was rowdy. They
were led by Attorney Mr. Thulani Masina to my office and I was
walking leading the way. A large group entered my chambers and I
asked them what their problem was whereupon they told me that they
are not prepared to place their cases before Mr. Bwonwonga as they
expressed doubts about his completence in both Criminal and Civil
matter. We had a short discussion where I tried to reason but could
not make headway. Mr Masina purported to be the groups' spokesman. I
could gather that the rest were acting in concert.
3. At
this point I decided to attend to these cases in order to protect the
dignity of the Court. Moreso, it was then 11.00 am. way passed the
schedule time for the court sitting at 9.30 am. and Mr Bwonwonga had
not arrived.
4. Just
before 1.00 pm. Mr Bwonwonga came to Manzini and I appraised him of
what had transpired and he explained that the reason he was late is
that he had to attend on his residence permit at the Ministry of Home
Affairs.
I
hope the above account will help clearing the air in this rather
unfortunate incident.
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The
memorandum is annexure 'B' to the applicant's replying affidavit. It
bears the date stamps of the Registrar of the High Court and the
Director of Public Prosecutions (the DPP). The date in each stamp is
the 11th October 1995. It is not clear or explained under what
circumstances the memorandum came into the possession of the Director
of Public Prosecution as the memorandum had not been copied to him.
There is no indication as to what steps, if any, the Registrar took
with regard to the memorandum.
On
the 17th October 1995 the Director of Public Prosecutions wrote the
following memorandum to the Commissioner of Police (2nd respondent)
"PROTEST BY A GROUP OF LAWYERS AT MANZINI MAGISTRATE COURT ON
9TH OCTOBER 1995 Enclosed hereto is a copy of a Memorandum to Acting
Registrar of the High Court by the Principal Magistrate, Mr. S.B.
Maphalala, to The Acting Registrar of the High Court (sic). It is an
account of certain events that occurred at Manzini Magistrate Court
premises on the 9th October, 1995, which were given wide publicity
and coverage by the mass media in the country and abroad. It gives an
account of rowdy behaviour by a group, which behavior cannot be
condoned in any way. In fact if any act unlawfully and intentionally
violated the dignity, repute or authority of the judiciary in this
country, that was it.
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The
said conduct by this mob should be investigatd and the alleged
perpetrators brought to book as a matter of urgency. I hereby direct
you to open investigations to find the persons who were involved in
this shameful conduct which has brought the administration of justice
into disrepute and submit a docket to me for prosecution.
At
least the alleged leader and spokesman of the group, a certain Mr
Thulani Masina, is clearly identified in Mr Maphalala's report. The
identity of the rest of the group should also be established, after
which they should all be arrested and charged jointly and severally
with Contempt of Court, and alternatively, with Defeating or
Obstructing the course of justice. The docket should then be forwaded
to me without delay for prosecution.
Kindly
expedite action."
The
Director of Public Prosecution's memorandum was copied to the
Registrar and to the Secretary of the Judicial Service Commission.
It
appears that sometime after the issue of the Director of Public
Prosecution's memorandum, members of the Law Society of Swaziland got
wind of the contents of the memorandum. A meeting of the Law Society
was held at about midday of 20th October 1995 at which the possible
arrest of some members of the Law Society pursuant to the Director of
Public Prosecution's memorandum was discussed. The upshot of the
meeting was that the Law Society fearing the arrest
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of
some of its members pursuant to the Director of Public Prosecution's
memorandum decided to file an application in the High Court that very
afternoon for an interim order in which the respondents were called
upon to show cause on the 24th October 1995 why :-
(a) The
Respondents or their agents or their employees should not be
interdicted from arresting any member of the Applicant in connection
with an alleged contempt of Court and/or defeating the ends of
justice that allegedly occurred at the Manzini Magistrate's Court on
the 9th October, 1995.
(b) Respondents
should not be ordered to pay the costs hereof The order was granted
as parayed. The order was obviously too wide. The intention was and
has been confirmed in the hearing, to interdict the arrest of the
applicant's members pursuant to the Director of Public Prosecution's
memorandum to the police. The rule nisi which was issued was extended
on the return date until to-day.
The
affidavit filed in support of the application is brief and focuses on
the subject of the Law Society meeting on the 20th and the averment
that there was no basis in law for arresting members of the Law
Society pursuant to the Director of Public Prosecution's memorandum.
The respondents have filed answering affidavits to which the
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applicant
has replied. The answering affidavit of the 1st respondent was filed
by the Director of Public Prosecutions and that of the 2nd respondent
was filed by the Attorney General. The application is in effect one
against Government Officials acting in their capacities as such. The
applicant could in terms of section 3 of the Government Liabilities
Act No. 2/1967 have elected to cite the Attorney General as the
nominal respondent. I make the observation that the Attorney General
as the Government's Legal Advisor and representative should have been
briefed by both respondents and taken a decision on the
representation in Court, of both respondents. The practice of
allowing individual Government Officials or departments who have been
served with court process, to take whatever action thereon as they
consider necessary should be avoided at all costs. Such action could,
in some cases, prove costly and embarrassing to the Government.
Both
respondents have raised certain points in limine. The applicant has
raised certain points with regards to the manner in which the
respondents' points have been raised. No useful purpose will in my
view be served by a detailed consideration of all these points. There
has not, in my view, been any serious or wilful disregard of the
rules of court as to call for a reasoned ruling on such points for
purposes of establishing any guidance for the future. In any event
the points taken are such that even if upheld the offending party
would simply withdraw to correct and return to court for
determination of the issue that is central to the application. I
allowed argument on the question of the
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locus
standi of applicant and ruled that the Law Society had a sufficient
interest in the matter to bring the matter within the provisions of
the Legal Practitioners Act as to entitle the Law Society to move
this application. A further point which can be dealt with at this
stage relates to the attestation of the affidavits filed by the
applicant in support of this application. The affidavits were
apparently signed by an attorney who is a professional assistant in
the office of Mr. Shilubane who, as President of the Law Society has
filed the main affidavit and whose office has been cited as the
attorneys for the applicant. There are two conflicting decisions of
the High Court on this practice. In the case of MAGAGULA V. TOWN
COUNCIL OF MANZINI AND OTHERS 1979-81 SLR p291 Nathan C.J. held that
in regard to the attestation of affidavits, there is no statutory
provision to the effect that a commissioner of oaths shall not
administer an oath or affirmation relating to a matter in which he
has an interest. In the later case of F.N. DLAMINI V. J.M. DLAMINI
1982-1986 VOL II SLR p416, Hannah C.J. held that affidavits sworn
before the respondent's own attorney or agent, partner or clerk of
that attorney, are not admissible in evidence. A ruling on these two
decisions will be no doubt necessary by an appropriate court. It is
not necessary for me to deal with the issue in this application for
both sides are guilty of the same error. The respondent's affidavit
were attested to before legal practitioners in the employ of the
Government who may be equated to the class of commissioners referred
to in the two judgments. The allegation that the 1st respondent was
wrongly joined in this application must be dealt with on the
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merits
as it has a direct bearing on the interpretation to be placed on the
memorandum of the Director of Public Prosecution It is submitted on
behalf of the Director of Public Prosecution that he "is not
authorised and/or empowered under any law to effect arrest of any
member of the applicant". The 1st respondent is supported in
this submission by the 2nd respondent who states at paragraph 3.2 of
his affidavit that " the 1st respondent has been wrongly cited
as he has no authority to arrest any person". The first
respondent expands on this point as follows at paragraph 4 of his
affidavit-
As
Director of Public Prosecutions I have no authority or power under
any law to arrest or order the arrest of any person. What happened in
this matter is that on the 11th October 1995 I received a copy of a
Memorandum from the Principal Magistrate, Mr.S.B. Maphalala to the
Acting Registrar of the High Court in which the Principal Magistrate
was reporting about an incident that had occurred at the premises of
the Magistrate Court Manzini. After having read the contents of this
Memorandum it appeared that there was prima facie evidence that
certain persons had committed the crime of Contempt of Court. I
brought the attention of the Commissioner of Police to this matter
for him to do his duties of investigation, arrest and charge any
person shown by evidence to have participated in the commission to
this crime and for the Commissioner to forward to me this Police
docket for prosecution.
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It
will be immediately observed that this averment is at direct variance
with the contents of the Director of Public Prosecution's memorandum.
The Director of Public Prosecutions has attempted quite
unsatisfactorily, under paragraph 4, to place an entirely innocent
interpretation of his conduct in writing the memorandum. The
memorandum very clearly conveys the Director of Public Prosecution's
conclusion-
(1) that
an unlawful and intentional act was committed by a group of lawyers.
(2) that
such unlawful and intentional conduct should be investigated and the
culprits brought to book as a matter of urgency
(3) that
the identified leader of the group of lawyers should, together with
such other lawyers as could be identified, be arrested and charged.
The
memorandum served as a clear directive by the Director of Public
Prosecutions to the Commissioner, as to how he should proceed in the
matter. I am at pains to understand how it could be sought to place
any other interpretation on the memorandum other than that it was
such a directive.
It
is of no consequence for the respondents to state that the Director
of Public Prosecutions has no power to arrest any member of the
applicant. The fact is that
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the
Director of Public Prosecutions purported to exercise the very powers
which he now, supported by the 2nd respondent states he does not
have. The relief sought by the applicant is as a direct consequence
of the directive by the Director of Public Prosecutions.
The
next issue on the merits as argued by the respondents is that the
order sought by the applicant is unlawful in that it prohibits the
police from carrying out their statutory duty against the undisclosed
members of the applicant. There can in general, be no problem with
this statement by the respondents. The police powers with regard to
arrest are, however, governed by statute namely, the Criminal
Procedure and Evidence Act No. 67/1938. Part V(A) of the Act sets out
in clear terms the circumstances under which a police officer may
arrest any person without a warrant. The relevant section is section
22 which I will set out in full:-
Every
peace officer and every other officer empowered by law to execute
criminal warrants is hereby authorised to arrest without warrant
every person-la) Who commits any offence in his presence;
(b) Whom
he has reasonable grounds to suspect of having committed any of the
offences mentioned in Part II of the First Schedule,
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(c) Whom
he finds attempting to commit and offence, or clearly manifesting an
intention so to do.
Under
Part V(B) provision for an arrest with a warrant is made as follows:-
31
(1) Any magistrate may issue a warrant for the arrest of any person
or for the further detention of a person arrested without a warrant
on a written application subscribed by the Attorney General or by the
local public prosecutor or any commissioned officer of police setting
forth the offence alleged to have been comitted and that, from
information taken upon oath, there are reasonable grounds of
suspicion against such person, or upon information to the like effect
of any person made on oath before the magistrate issuing the warrant:
Provided
that no magistrate may issue any such warrant except when the offence
charged has been committed within his area of jurisdiction, or except
when the person against whom such warrant is issued was, at the time
when it was issued, known, or suspected on reasonable grounds, to be
within his area of jurisdiction.
(2) Every
such warrant may be issued on a Sunday
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memorandum.
It would then have been open to the police in the normal way, to
investigate the case and to apply whatever sections of Part V of Act
67/1938 were relevant or to proceed with their investigations upon
whatever formal complaint may have been made by the Magistrate or
Principal Magistrate in question.
The
rule nisi granted on the 20th October must in the circumstances be
confirmed with the amendment, that the interdict relates only to
arrests in terms of the memorandum issued by the Director of Public
Prosecutions to the police, arising from the incident reported by the
Principal Magistrate on the 11th October 1995.
The
rule is confirmed as altered with costs against the respondents.
B.
DUNN
ACTING
CHIEF JUSTICE