/ 29 May 2015

Quirky metaphors, sham trials

Judge Thomas Masuku fell out of favour with the Swaziland authorities. He now works in Namibia
Judge Thomas Masuku fell out of favour with the Swaziland authorities. He now works in Namibia

No wonder the name seemed so familiar. The Masuku, AJ, who’s been handing down decisions with admirable promptness and regularity from the high court Bench in Namibia this year is none other than Thomas Masuku, formerly a judge in Swaziland. 

He was made something of an economic refugee after what was widely seen as a sham hearing and improper suspension in 2011 presided over by recently suspended Swazi chief justice, Michael Ramodibedi.

Namibia, however, spotted an opportunity to benefit from Swaziland’s pig-headedness.

By my reckoning, after his appointment this year, Masuku has delivered 11 decisions so far, all of them within a quite acceptable time after hearing. I make this point because one of the 12 misdemeanours, widely regarded by the international human rights community as spurious, with which Masuku was charged by Ramodibedi, was that he did not give judgments sufficiently promptly.

Other allegations included “associating” with “elements” seeking unlawful change in Swaziland — a charge familiar to South Africans who regularly heard such justifications of oppressive action against critics of apartheid. It was obvious that the real reason for his effective sacking from the Swazi Bench was that the authorities — civil, royal and judicial — did not appreciate the concern for human rights that came through in his decisions.

It’s clear from his Namibian decisions that Masuku still has a distinct “voice” in his judgments, a turn of phrase uniquely his. 

Some examples from this year’s crop so far:

• “The truth can only be arrived at via the corridor of a full and frank disclosure”;

• The witness “stuck to his evidence like a postage stamp to an envelope”; and

• In a case where the accused were unrepresented, he noted that it would be “an exercise in sterile and fastidious formalism” to dismiss their application merely because they cited the wrong rule.

A careful reading of his decisions sometimes rewards the reader with an inward smile for other reasons. My favourite so far comes in a case that turned on whether the application was indeed a matter of urgency.

Finding that the matter could not in fact be said to be urgent, he commented that an applicant could not sit idly for some time and do nothing about a dispute — then suddenly go to court claiming urgency. 

The case he quoted to illustrate what the courts have had to say about this issue was from Lesotho, and concerns the matter of the president of the Court of Appeal against the prime minister. It must have given Masuku satisfaction to cite this case: it involved the then president of the Lesotho appeal court: Masuku’s persecutor, Ramodibedi — who at the time held office simultaneously in Lesotho and Swaziland. 

Ramodibedi lost this application and a subsequent appeal for an impeachment inquiry into a number of serious allegations against him to be set aside. He then resigned rather than face the inquiry — and focused his judicial attention on Swaziland alone, where he has proved every bit as controversial.

In the Ramodibedi case, said Masuku, deadpan, the court held that the applicant had created the urgency himself by being inactive and doing nothing until he suddenly approached the courts to try to stop the impeachment action against him.

Masuku’s handling of two other matters was also interesting:

• In Helao Nafidi Town Council vs Northland Development Project, the council needed to obtain condonation for the late filing of its plea. As part of its explanation for the delay the council said the two sides had been involved in attempts to settle the dispute and attached various letters between the parties as proof.

Having read the papers, Masuku concluded the letters disclosed privileged information. This, he says, “places me awkwardly such that I cannot maintain the requisite impartiality in the proceedings … I have thus become disqualified to deal with the matter beyond this stage, should the matter proceed to trial.”

He added that he “felt a measure of sympathy” for the lawyers acting for the council, given “the peculiar circumstances” of the case. Trying to take the court into their confidence and provide a full explanation for why they were late, they “ventured into what is otherwise forbidden territory and made disclosures that should not by law have been made”.

• The second judgment concerns a common enough phenomenon in South Africa that seems to be a plague in Namibia as well: a church came to court to resolve a major internal dispute about which faction is the “real” church.

Masuku began with a line that could have come straight from an account of his professional life in Swaziland: “Human relationships tend not infrequently to reach a nadir”, he writes — and of course it would be hard to find a lower or less successful point in his relationship with the Swazi judicial leadership than being thrown off the Bench on grounds described by the international legal community as unfair, irregular and unsubstantiated.

But in this case, the souring relationships involved structures of the New African Methodist Episcopal Church of the Republic of Namibia, a matter that “appears to be riddled with disputes at every turn”.

The judge said that in deciding the matter his mind was “tortured” by the fundamental problem of whether a secular court was the right forum for resolving such a dispute.

In the past, Namibian courts had heard disputes concerning church issues combined with issues of human rights. This case, however, concerned ecclesiastical squabbles only; as such it was not for a secular court to intervene. In addition, there was no agreement about the central facts and these could not be resolved without oral evidence. Moreover, it had not been clearly proved that the applicant had authority to bring the action in the first place.

It all sounds like a tediously difficult matter to manage. In the end, however, having decided to dismiss the application with costs, he added a courteous note to the lawyers on both sides for “assiduously” helping the court. “Theirs is an example worth emulating,” he concluded.