A Swazi businessman who claims he was left penniless after the king’s office “took over” his guesthouse for a number of years without paying has been prevented from taking legal action by Swaziland’s chief justice, who has declared the monarch immune from prosecution.
The 58-year-old tried to take the king’s office to court to recoup losses, which he says amount to millions of rands, after he was forced to sell his business when his bank threatened foreclosure. But after nine years of legal wrangling, the Mbabane man has now been told his case is unfightable because the king is above the law.
Citing the 2005 constitution, Chief Justice Michael Ramodibedi published a directive in late June declaring that “no summons or applications for civil claims against his majesty the king and ingwenyama, either directly or indirectly, shall be accepted in the high court or any other court in the country”.
In the paper memo, which was circulated outside all formal court hearings, the chief justice directs the registrar of the high court to refuse any applications involving the king.
Arnold Tsunga, the director of the Africa programme at the International Commission of Jurists, called the directive a deliberate attempt to undermine the rule of law. He said it should be for an individual court to decide whether it would accept a case, not a chief justice to issue a paper memorandum.
“This is a fundamental attack on a citizen’s right to be protected by the law and the right to be heard before an independent judiciary,” he said.
Said Mandla Hlatshwayo, the founding member of the Swaziland Coalition of Concerned Civic Organisations: “It creates a situation in which innocent people can become victims of unscrupulous individuals masquerading as representatives of the king and the courts will not be available to test the vera-city of such claims.”
Hlatshwayo, a Swazi who lives in exile in South Africa, said he was also gravely concerned about last week’s suspension of Judge Thomas Masuku. “This is all becoming very political. It is a symptom of the decay taking root in Swaziland, which has been caused by the lack of checks and balances in the Tinkhundla system of governance and the monarchy.”
Justice Masuku faces 12 counts of alleged misconduct, among them a charge of insulting the king, “actively associating with those who want to bring about unlawful change to the regime” and joining a toyi-toyi demonstration outside court.
In spite of having received a written order from the chief justice “to refrain from discussing the matter in the news media”, Justice Masuku spoke briefly to the Mail & Guardian this week to pronounce his innocence and confirm he would be defending his position.
He said the accusation that he had said the king had been speaking with a “forked tongue” had been misinterpreted, explaining that what he had said was that he could not believe the king would have authorised a certain behaviour (relating to requisition of cattle).
In the judgment, dated January 2011, Justice Masuku said: “It would be hard to imagine let alone accept and thus incomprehensible that his majesty could conceivably speak with a forked tongue, saying one thing to his people and then authorising his officers to do the opposite. I reject this notion as totally inaccurate and which cannot be properly apportioned to the venerated office of his majesty.”
Tsunga said: “What this suspension is saying is that a judge can be taken to task for a comment in a judgment, which equates to an attack on an independent judiciary.
“When a government becomes afraid of its own people, it starts to attack its country’s democratic institutions. We are seeing in Swaziland a situation comparative to Zimbabwe in this respect.”
Masuku has until July 22 to submit a written response to the allegations and will face a disciplinary hearing on August 11 to decide whether he may continue to work as a judge.
Freeloading royal family leaves guesthouse owner penniless
The family-run, 11-room Prestige Guesthouse opened in 2002 in the Swazi capital, Mbabane.
A few months later a representative from the king’s office advised the owner that all guests be vacated to make space for the Queen Mother of the Basotho for 10 days.
Since then the king’s office continued to place people in the guesthouse (including one of King Mswati III’s brides-to-be) without paying any accommodation fees.
With mounting debts from to unpaid bills and the bank threatening to foreclose, the owner offered to sell the guesthouse to the king’s office as a going concern in 2003, including its furniture and fittings, for R1.7-million.
Some months later he was served with a power of attorney authorising the transfer of the property for R425 898, a form he refused to sign. The following year payment of R300 000 was made to the man, followed by several unfulfilled promises to settle the balance.
In legal papers seen by the M&G, the king’s office promised in late 2005 to pay the man a deposit of R1-million followed by a balance of R1640 600 by June 2006 on condition the title of the guesthouse be transferred to the king’s office. Although the owner did receive an initial R1-million, the outstanding R1646 600 did not arrive, despite numerous attempts to engage the office.
In July 2008 Mbabane-based legal practice LR Mamba and Associates served a summons on the king’s office to recoup the outstanding money, plus 5% annual interest backdated to December 2005 when the purchase agreement was signed.
Three years of legal wrangling later, during which the owner said he had tried more than 200 times to see the king to discuss the matter, the chief justice finally responded to LR Mamba & Associates in June to say: “His majesty the king and ingwenyama is immune from any suit or legal process.”
Attempts to contact the office of the chief justice were unsuccessful.