Monday, March 31, 2014


A Swaziland newspaper has reported criticisms of the competence of a judge at a time when one editor and a writer are in jail awaiting contempt of court charges for criticising the kingdom’s judiciary

The Sunday Observer reported criticisms that Mpendulo Simelane, aged 39, who was appointed to the High Court bench in February 2014, was not properly qualified to be a High Court judge.

The Observer is in effect owned by King Mswati III who rules Swaziland as sub-Saharan Africa’s last absolute monarch. The King chooses the judges in his kingdom and the article could be seen as an indirect criticism of the King’s decision.

Welcome Dlamini wrote in the Observer under the headline Mpendulo Simelane: Is he fit to Judge? ‘However, his [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. The Sunday Observer has it in authority that even some of the judges are not happy with Mpendulo Simelane being appointed to be part of them.’

He added, ‘An impeccable source within the judiciary said it was well known that Simelane’s appointment had not gone down well with his colleagues even though there was nothing they could do about it.

‘“Some of the judges feel he does not yet qualify to be a judge. As a judge, you have to write judgments that will stand their ground throughout the world. Judgments are important because they become a point of reference for other countries. Is Simelane fit to write such judgments? Some of the judges don’t think so,” said the source.’

‘Further, said the source: “The judges would have preferred that the post should have been advertised because there are a lot of lawyers and magistrates who are senior and have the necessary qualifications to be appointed judges. With Simelane, he did not compete with anyone for the position. It was sort of a reward.” 

‘Constitutionally, a person has to meet one of three requirements in order to be appointed judge of the kingdom’s High Court. That person should either have been “a legal practitioner, barrister or advocate of not less than ten years practice in Swaziland or any part of the Commonwealth or the Republic of Ireland”.

‘Or, that person should have served as “a judge of a superior court of unlimited jurisdiction in civil and criminal matters in any part of the Commonwealth or the Republic of Ireland for a period of not less than five years”.

‘Alternatively, that individual should have either been a legal practitioner, barrister or advocate and a judge of a superior court as stated above for a combined period of such practice and service of not less than ten years.

‘Judge Mpendulo Simelane, according to another source within the legal fraternity, does not meet any of these requirements.

‘“Yes, he was admitted as an attorney 10 years ago but he served for only five years before he was appointed registrar of the High Court and that position cannot be classified as being a legal practitioner,” said the source.’

The publication by the Observer of direct questions about the competence of a judge comes two weeks after Bheki Makhubu, the editor of the Nation magazine and human rights lawyer Thulani Maseko were arrested and charged with writing and publishing articles critical of Swaziland Chief Justice Michael Ramodibedi. 

The two men have been remanded in custody awaiting trial.

Their arrest has led to an outcry across the world with many human rights organisations calling for their immediate release. Amnesty International has named both men ‘prisoners of conscience.’
Earlier this year, the Sunday Observer was forced to publish an abject apology after it published a criticism of the judiciary. In its apology the newspaper said. ‘[It] is not the intention of the Swazi Observer and its newspapers to disregard the independence of the judiciary, but to be seen to assisting it uphold the rule of law in the country’.

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