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THE
HIGH COURT OF SWAZILAND
CIV.
CASE NO. 84/2002
In
the matter between
MARIO
MASUKU APPLICANT
And
DIRECTOR
OF PUBLIC PROSECUTIONS 1st RESPONDENT
ATTORNEY
GENERAL 2nd RESPONDENT
Coram MAPHALALA-J
ANNANDALE
- J
For
the Applicant MR. P. SHILUBANE
For
the Respondent ADVOCATE E. THWALA
(Instructed
by the Attorney General)
RULING
ON POINTS OF LAW IN LIMINE
(19/03/2002)
The
Court
The
applicant on the 14th February 2002, brought an application under a
certificate of urgency for an order declaring that Legal Notice No.
131 of 2001 dated 23 August 2001 in terms of which the terms of
office of Mr. Justice S.W. Sapire, Chief Justice, and Mr. Justice
J.M. Matsebula terms of office expired on the 31st December 2001 null
and void and of no force and effect.
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What
propelled the applicant to launch this application is that on the
24th January 2002, he appeared before Matsebula J charged with two
counts of contravening Section 4 (1) (B) of Act No. 46 of 1938 (The
Sedition and Subversive Activities Act) but the case was adjourned
indefinitely on the 7th February 2002, because the presiding judge
(Matsebula J) was of the view that there existed a doubt as to
whether or not, the said judges' terms of office came to an end on
the 31st December, 2001 in the light of a Government Gazette dated
the 29th August 2001, which stipulated that the said judge's term of
office as a judge of the High Court of Swaziland came to an end on
the aforesaid date.
The
applicant is presently in custody and he avers at paragraph 6 of his
founding affidavit that he has an interest in this matter as he is
desirous that his trial be concluded as soon as possible. He submits
further that the matter is urgent in that he is languishing in jail
and he does not know when his trial will be finalised. Further more,
that he has no other remedy but to approach this court.
The
respondent filed a notice of intention to raise points of law in
limine on the 18th February 2002 and then on the 19th February 2002
filed a notice to strike out.
The
points of law in limine in their abbreviated form are as follows:
1. Urgency
- that the matter before court is not urgent at all because the Legal
Notice which is the subject matter of this application was issued on
the 23rd August 2001, and six months down the line brings this
challenge using the urgency procedure.
2. Jurisdiction
- the founding affidavit does not show that this court does have
jurisdiction to hear and determine this type of an application for
judicial review of a Legal Notice issued under a Decree and signed by
His Majesty the King. 2nd respondent further submit that despite the
fact that applicant did not make any allegation that this court does
have jurisdiction to hear this application. This court does not have
the necessary legal competence to hear this kind of an application.
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3. Recusal
- the judges of this court would still not be entitled to hear this
type of an application because clearly have an interest in the
subject matter of this application and as such should any one of them
preside over it the principle of natural justice which says "nemo
judex in causa sue" will be compromised and justice will not, in
the eyes of an ordinary bystander, manifestly and undoubtedly be seen
to be done. Further, that any judge of this court who may sit and
hear this application will be as good as determining his own terms of
service.
4. Locus
standi in judicio - that applicant herein does not have a locus
standi to bring this application there being nothing making him
special out of all fee trial prisoners some of whom have not been
allocated a trial date.
5. The
matter involves a labour dispute - this application involves a labour
dispute, in terms of section 8 of the Industrial Relations Act No. 1
of 2000 and as such falls within the exclusive jurisdiction of the
High Court (sic) and the issue of the retirement age of judges is not
an exception to this widely worded Section.
6. There
is a similar matter currently rending before the Court of
Appeal-there is a matter wherein the same question of law has arisen
and it currently before the Court of Appeal, the practice is that
this matter be stayed pending the final determination of the true
legal position by the highest court in the land.
7. Misioinder
- Applicant ought to have joined the Minister of Justice herein
because a legal notice made under his Ministry is being challenged in
court. It is very irregular to bypass the Minister under whose
portfolio the appointment of Judges of this court is done. Further
the judge where retirement is sought to be challenged has not been
joined as co-applicant because he is the one who has a direct
interest in the matter. There is further no indication that the
honourable Justice Matsebula mandated applicant to champion his
interests before this court.
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The
notice to strike out filed of record seeks to strike out the second
sentence of paragraph 5.1. of the founding affidavit on the ground
that it constitutes inadmissible hearsay, the source of which has not
been disclosed.
At
the commencement of arguments before us on the 26th February 2002, we
raised merit motu point from the bench that it appeared to us that
this application has been overtaken by events in view of the issuance
on the 21st February, 2002 of Legal Notice No. 2 of 2002. The said
Notice issued under the hand of His Majesty directed that Chief
Justice S.W. Sapire and Justice Matsebula shall continue in office up
to the 30th June 2002. Mr. Shilubane however, held the view that the
notice does not alter the position of the applicant as it does not
guarantee that the applicant's criminal case will be finalised before
that date. Further, that the notice cannot in law affect proceedings
which had already commenced.
Mr.
Thwala for the respondents argued au contraire expressing similar
views as the court that the application has been overtaken by events
and that the applicant in the circumstances ought to withdraw his
application. We however, reserved our ruling on this point and
allowed the parties to argue the points in limine as a whole.
Points
no 3, 5 and 6 which relate to recusal, a labour dispute and the
pending appeal were abandoned by Mr. Thwala and thus no further
comments will be necessary thereto, save for the following:
Regarding
point 3 supra we canvassed with respondent's counsel the propriety of
moving for recusal of the presiding judges. Not a single one of the
guidelines carefully set out in the judgment by the High Court in
Civil Case No. 1822/2001, in the (unreported) matter of The Minister
of Justice and Constitutional Affairs and Stanley Wilfred Sapire In
Re: The ex parte application of Stanley Wilfred Sapire. have been
followed insofar as it relates to practical procedure when recusal is
being sought. In his own papers, applicant relies on this very
decision to substantiate a further point in limine and cannot be
heard to say he was unaware of the judgement and the guidelines which
were set out therein. At best it is a spurious disregard of the laid
down procedure to be followed in such instances. It was only when
this blatant
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disregard
was canvassed from the bench that respondent's counsel reluctantly
retreated and abandoned the application for recusal.
It
clearly needs to be stressed again that the stare decisis principle
does apply in this jurisdiction and that legal practitioners must not
pay mere lipservice thereto but heed to precedents, especially so as
in this matter where counsel cannot plead ignorance of the matter.
The
points of limine which remains to be determined by the court are
points no. 1, 2, 4 and 5 viz, urgency, jurisdiction, locus standi in
judicio and misjoinder, respectively. Because of the ratio decidendi
applied to this matter and the outcome hereof, it is not necessary to
pronounce on the individual points that were argued in limine. The
crux of the matter is the effect which Legal Notice No. 2 of 2002 has
on the pending criminal trial of the applicant and his apprehension
that the trial would not be finalised, his apprehension being derived
from the fact that the Hon. Matsebula J in fact did adjourn the
matter sine die due to the publication of the "first" Legal
Notice..
The
effect of Legal Notice No, 2 of 2002 on the present application.
Mr,
Shilubane advanced a three-pronged argument in his contention that
the said Legal Notice does not alter the position at all. Firstly, he
contended that in law one cannot make a law to affect proceedings
which had already commenced. Secondly, that this Notice is exactly
the same as the Notice they are challenging, and thirdly, that this
Notice does not operate with retrospective effect taking into account
that the applicant pleaded in the criminal trial after the term
reflected in the first Notice had long expired. Applicant has a real
and substantial interest in this regard.
Mr.
Thwala advanced a contrary argument as outlined above.
We
have considered this matter very carefully and we are of the view
that proceeding with the matter in view of Legal Notice No. 2 of 2002
would merely be an academic exercise. The real basis for the
applicant to bring this application was because of the previous
Notice which caused the trial judge to put a hold on all the cases
pending before him. This application was to get that Notice out of
the way. Since the
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issuance
of Legal Notice No. 2 the learned trial judge has returned and is
presently proceeding with his cases. The obstacle that was the cause
of the complaint has now fallen away. For practical purposes there is
no reason why the applicant's criminal case cannot resume before the
learned judge.
The
question of the validity or otherwise of Legal Notice No. 131 of 2001
is of no import to applicant as matters stand presently. Those
questions are pending before the Court of Appeal where the matter
involving the Chief Justice is to be determined on the issue of
recusation.
In
the premise, we hold that this application has been overtaken by
events and any further discussions on the points in limine would be
unnecessary.
A
point of potential substance was argued by Mr. Shiluhane during the
hearing. The gist of it is that it may remain possible that the
applicant's trial is not finalised by the date on which the second
Legal Notice purports to terminate the appointment of the learned
trial judge, the Hon. Mr. Justice Matsebula. In the event that by the
30' June 2002 the trial has not been finalised, so he argues, the
applicant will be back to square one and will have to bring a fresh
application all over again. This argument was not raised in the
founding affidavit as it was not possible to foresee, at the time
when the application was first made, that a second Notice would be
issued in which the purported date of termination was advanced by six
months.
Two
obstacles fragment this line of reasoning. Firstly, it is based on
mere speculation. It is a matter of public record that the trial of
the applicant has already progressed to an advanced stage.
Applicant's counsel could not advance a reasonable estimation of the
further anticipated duration of the trial, to show that indeed it is
a reasonable possibility, if not probability, that the trial will not
have been finalised during the purported present extended term of
office of the learned trial judge. Secondly, the Constitution
specifically provides for precisely such an eventuality, in that it
vests in Section 99 (2) a trial judge with the power and authority to
finalise pending matters before him, despite having reached the end
of his term of office. The Section reads:
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"Notwithstanding
that he has attained the age at which he is required by the
provisions of this section to vacate his office, a person may sit as
a judge for the purpose of delivering judgement or doing any other
thing in relation to proceedings which were commenced before him
before he attained that age".
It
is nevertheless in the interests of justice and of the applicant in
particular to have this trial finalised as expeditiously as can be.
He is entitled to a judgment by the court which took his plea. An
order to facilitate this, the Registrar of the High Court is directed
to re-allocate his matter before the Hon. Mr. Justice Matsebula as
soon as is practically possible, but in any event not later than in
the early days of the second session of the High Court.
In
the result, the application is dismissed with costs, which is to
include the costs of counsel.
S.B.
MAPHALALA J.P. ANNANDALE
JUDGE JUDGE
