Eswatini 2005 Constitution

CHAPTER VIII. THE JUDICATURE

Part 1. General

138. Administration of Justice

Justice shall be administered in the name of the Crown by the Judiciary which shall be independent and subject only to this Constitution.

139. The Judiciary

1. The Judiciary consists of –
   1. the Superior Court of Judicature comprising –
      1. The Supreme Court, and
      2. The High Court;
   2. such specialised, subordinate and Swazi courts or tribunals exercising a judicial function as Parliament may by law establish.
2. The Judiciary has jurisdiction in all matters civil and criminal, including matters relating to this Constitution, and such other jurisdiction as may by law be conferred on it.
3. The superior courts are superior courts of record and have the power to commit for contempt to themselves and all such powers as were vested in a superior court of record immediately before the commencement of this Constitution.
4. Except as may otherwise be provided in this Constitution or as may otherwise be ordered by a court in the interest of public morality, public safety, public order or public policy, the proceedings of every court shall be held in public.
5. Subject to the provisions of this Constitution, the Chief Justice is the head of the Judiciary and is responsible for the administration and supervision of the Judiciary.

140. Judicial power of Swaziland

1. The judicial power of Swaziland vests in the Judiciary. Accordingly, an organ or agency of the Crown shall not have or be conferred with final judicial power.
2. In the exercise of the judicial power under this Constitution or any other law, the superior courts may, in relation to any matter within their jurisdiction, issue such orders or directions as may be necessary to ensure the enforcement of any judgement, decree or order of those courts.

141. Independence of the Judiciary

1. In the exercise of the judicial power of Swaziland, the Judiciary, in both its judicial and administrative functions, including financial administration, shall be independent and subject only to this Constitution, and shall not be subject to the control or direction of any person or authority.
2. Neither the Crown nor Parliament nor any person acting under the authority of the Crown or Parliament nor any person whatsoever shall interfere with Judges or judicial officers, or other persons exercising judicial power, in the exercise of their judicial functions.
3. All organs or agencies of the Crown shall give to the courts such assistance as the courts may reasonably require to protect the independence, dignity and effectiveness of the courts under this Constitution.
4. A judge of a superior court or any person exercising judicial power, is not liable to any action or suit for any act or omission by that judge or person in the exercise of the judicial power.
5. The administrative expenses of the Judiciary, including all salaries, allowances, gratuities and pensions payable to, or in respect of persons serving in the Judiciary, shall be charged on the Consolidated Fund.
6. The salary, allowances, privileges and rights in respect of leave of absence, gratuity, pension and other conditions of service of a Judge of a superior court or any judicial officer or other person exercising judicial power, shall not be varied to the disadvantage of that Judge or judicial officer or other person.
7. The Judiciary shall keep its own finances and administer its own affairs, and may deal directly with the Ministry responsible for finance or any other person in relation to its finances or affairs.

142. Administrative functions of the Chief Justice

Subject to the provisions of this Constitution or any other law, the Chief Justice as head of the Judiciary may make rules for regulating the practice and procedure of the superior and subordinate courts, including the specialised and local courts as well as powers of judicial officers.

143. Oaths by Justices of the superior courts

A judge of the Supreme Court or the High Court shall not enter upon the duties of office unless that judge has taken and subscribed the oath of allegiance and the oath for the due execution of office as set out in the Second Schedule.

144. Appointment of assessors

1. A superior court may hear a case wholly or in part with the assistance of assessors.
2. A superior court may in any case in which it appears to that court to be expedient call in the aid of one or more assessors with such qualifications as the court may deem appropriate.

Part 2a. The Supreme Court

145. Composition of the Supreme Court

1. There shall be a Supreme Court of Judicature for Swaziland consisting of the Chief Justice and not less than four other Justices of the Supreme Court.
2. The Supreme Court shall be duly constituted for its ordinary work by not less than three Justices of the Supreme Court.
3. A full bench of the Supreme Court shall consist of five Justices of that Court.
4. The Chief Justice shall preside at sittings of the Supreme Court, and when not sitting the most senior of the Justices constituting the court shall preside.

146. Jurisdiction of Supreme Court (General

1. The Supreme Court is the final court of appeal. Accordingly, the Supreme Court has appellate jurisdiction and such other jurisdiction as may be conferred on it by this Constitution or any other law.
2. Without derogating from the generality of the foregoing subsection, the Supreme Court has –
   1. such jurisdiction to hear and determine appeals from the High Court of Swaziland and such powers and authority as the Court of Appeal possesses at the date of commencement of this Constitution; and
   2. such additional jurisdiction to hear and determine appeals from the High Court of Swaziland and such additional powers and authority, as may be prescribed by or under any law for the time being in force in Swaziland.
3. Subject to the provisions of subsection (2), the Supreme Court has for all purposes of and incidental to the hearing and determination of any appeal in its jurisdiction the power, authority and jurisdiction vested in the court from which the appeal is brought.
4. A decision of the Supreme Court shall be enforced, as far as that may be effective, in like manner as if it were a judgment of the court from which the appeal was brought.
5. While it is not bound to follow the decisions of other courts save its own, the Supreme Court may depart from its own previous decision when it appears to it that the previous decision was wrong. The decisions of the Supreme Court on questions of law are binding on other courts.
6. Subject to the provisions of this Constitution or as may be prescribed by any other law, an appeal from the full bench of the High Court (or any other court) shall be heard and determined by a full bench of the Supreme Court.

147. Appellate jurisdiction of Supreme Court

1. An appeal shall lie to the Supreme Court from a judgement, decree or order of the High Court –
   1. as of right in a civil or criminal cause or matter from a judgement of the High Court in the exercise of its original jurisdiction; or
   2. with the leave of the High Court, in any other cause or matter where the case was commenced in a court lower than the High Court and where the High Court is satisfied that the case involves a substantial question of law or is in the public interest.
2. Where the High Court has denied leave to appeal the Supreme Court may entertain an application for special leave to appeal to the Supreme Court in any cause or matter, civil or criminal, and may grant or refuse leave accordingly.

148. Supervisory and review jurisdiction

1. The Supreme Court has supervisory jurisdiction over all courts of judicature and over any adjudicating authority and may, in the discharge of that jurisdiction, issue orders and directions for the purposes of enforcing or securing the enforcement of its supervisory power.
2. The Supreme Court may review any decision made or given by it on such grounds and subject to such conditions as may be prescribed by an Act of Parliament or rules of court.
3. In the exercise of its review jurisdiction, the Supreme Court shall sit as a full bench.

149. Powers of a single Justice of Supreme Court

1. Subject to the provisions of subsections (2) and (3) a single Justice of the Supreme Court may exercise power vested in the Supreme Court not involving the determination of the cause or matter before the Supreme Court.
2. In criminal matters, where a single Justice refuses or grants an application in the exercise of power vesting in the Supreme Court, a person affected by such an exercise is entitled to have the application determined by the Supreme Court constituted by three Justices.
3. In civil matters, any order, direction or decision made by a single Justice may be varied, discharged or reversed by the Supreme Court of three Justices at the instance of either party to that matter.

Part 2b. The High Court

150. Composition of the High Court

1. There shall be a High Court of Judicature for Swaziland consisting of –
   1. the Chief Justice, ex officio;
   2. not less than four Justices of the High Court as may be prescribed; and
   3. such other Justices of the Superior Court of Judicature as the Chief Justice may, in writing assign to sit as High Court Justices for any case or period.
2. The High Court shall be duly constituted –
   1. by a single Judge of the High Court;
   2. by a single Judge of the High Court with assessors; or
   3. by a single Judge of the superior courts with or without assessors.
3. A full bench of the High Court shall consist of three Justices of the Superior courts.
4. The Chief Justice shall always preside whenever sitting as a Justice of the High Court.
5. The Chief Justice shall designate in writing the most senior Justice of the High Court to be Principal Judge of the High Court to preside and exercise such functions as may be stated in the designation.
6. There shall be such divisions of the High Court consisting of such number of Justices respectively as the Chief Justice may determine after consultation with the Minister responsible for Justice and the President of the Swaziland Law Society.

151. Jurisdiction of the High Court

1. The High Court has –
   1. unlimited original jurisdiction in civil and criminal matters as the High Court possesses at the date of commencement of this Constitution;
   2. such appellate jurisdiction as may be prescribed by or under this Constitution or any law for the time being in force in Swaziland;
   3. such revisional jurisdiction as the High Court possesses at the date of commencement of this Constitution; and
   4. such additional revisional jurisdiction as may be prescribed by or under any law for the time being in force in Swaziland.
2. Without derogating from the generality of subsection (1) the High Court has jurisdiction –
   1. to enforce the fundamental human rights and freedoms guaranteed by this Constitution; and
   2. to hear and determine any matter of a constitutional nature.
3. Notwithstanding the provisions of subsection (1), the High Court –
   1. has no original or appellate jurisdiction in any matter in which the Industrial Court has exclusive jurisdiction;
   2. has no original but has review and appellate jurisdiction in matters in which a Swazi Court or Court Martial has jurisdiction under any law for the time being in force.
4. The High Court has no power, in a trial for the offence of treason, to convict any person for an offence other than treason.
5. A Justice of the High Court may, in accordance with rules of court, exercise in court or in chambers all or any of the jurisdiction vested in the High Court by this Constitution or any other law.
6. For the purposes of hearing and determining an appeal within its jurisdiction and the enforcement of a judgement or order made on any appeal, the High Court shall have all the powers, authority and jurisdiction vested in the court or tribunal from which the appeal is brought.
7. In this section any reference to “revisional jurisdiction” shall be construed as including a reference to jurisdiction to determine reserved questions of law and cases stated.
8. Notwithstanding subsection (1), the High Court has no original or appellate jurisdiction in matters relating to the office of iNgwenyama; the office of iNdlovukazi (the Queen Mother); the authorisation of a person to perform the functions of Regent in terms of section 8; the appointment, revocation and suspension of a Chief; the composition of the Swazi National Council, the appointment and revocation of appointment of the Council and the procedure of the Council; and the Libutfo (regimental) system, which matters shall continue to be governed by Swazi law and Custom..

152. Review and supervisory powers of High Court

The High Court shall have and exercise review and supervisory jurisdiction over all subordinate courts and tribunals or any lower adjudicating authority, and may, in exercise of that jurisdiction, issue orders and directions for the purpose of enforcing or securing the enforcement of its review or supervisory powers.

Part 3. Appointment, removal, etc of Superior Court Justices

153. Appointment of Justices of the superior courts

1. The Chief Justice and the other Justices of the superior courts- shall be appointed by the King on the advice of the Judicial Service Commission.
2. Where the office of the Chief Justice is vacant, or where the Chief Justice is for any reason unable to perform the functions of office –
   1. until a person has been appointed to, and has assumed the functions of, that office; or
   2. until the person holding the office of Chief Justice has resumed the functions of that office, as the case may be,

   those functions shall be performed by the most senior of the Justices of the Supreme Court.

3. Where it appears to the Chief Justice that for a short duration the prescribed complement of the Supreme Court or High Court, as the case may be, is for any reason unlikely to be realised or where the exigencies of the situation so require, the Chief Justice shall advise the King to appoint a qualified person to act in that Court for that duration.
4. Whether in respect of the office of the Chief Justice or office of any Justice of the superior courts, an acting appointment shall not exceed a single renewable period of three months.
5. Notwithstanding the provisions of subsections (3) and (4), the Chief Justice after consultations with the Judicial Service Commission may make an acting appointment where the duration does not exceed one month, unrenewable.
6. A person whose appointment to act as a Justice of a superior court has expired may, with the consent of the King acting on the advice of the Chief Justice or the Chief Justice after consultation with the Judicial Service Commission, continue to act for such a period not exceeding three months as may be necessary to enable that person to deliver judgement or to do any other thing in relation to proceedings that were commenced before that person previously to the expiry of the acting appointment.

154. Qualification for appointment to the superior courts

1. A person shall not be appointed as a Justice of a superior court unless that person is a person of high moral character and integrity and in the case of an appointment to –
   1. the Supreme Court,
      1. that person is or has been a legal practitioner, barrister or advocate of not less than fifteen years practice in Swaziland or any part of the Commonwealth or the Republic of Ireland; or,
      2. that person is, or has served as, a Judge of the High Court of Swaziland or 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 seven years ; or,
      3. that person is, or has served as, such legal practitioner, barrister or advocate as mentioned in paragraph (a) (i), and as such Judge as mentioned in paragraph (a) (ii) for a combined period of that practice and service of not less than fifteen years;
   2. the High Court,
      1. that person is or has 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
      2. that person is, or has 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; or
      3. that person is, or has served as, such legal practitioner, barrister or advocate as referred to in paragraph (b) (i) and as such Judge as referred to in paragraph (b) (ii) for a combined period of such practice and service of not less than ten years.

155. Tenure of office of superior court Justice

1. A Justice of the Supreme Court of Judicature shall hold office in terms of this Constitution.
2. The office of a Justice of a superior court shall not be abolished while there is a substantive holder of that office.
3. In the case of a Justice of a superior court, it shall not be necessary for the appointment to be subject to any period of probation.

156. Retirement and resignation of Justices of the superior courts

1. Subject to the provisions of this Constitution or any other law, a Justice of a superior court –
   1. may retire at any time after attaining the age of sixty-five years subject to a service of at least ten years;
   2. shall vacate office, in the case of –
      1. the Supreme Court, at seventy-five years;
      2. the High Court, at seventy five years;
      3. the Supreme Court and High Court, upon removal from office in terms of section 158.
2. A Justice of a superior court may at any time resign from office by notice in writing addressed to the Chairman of the Judicial Service Commission.
3. Notwithstanding that a justice has attained the age at which that justice is required to vacate office, a Justice of a superior court may continue in office for such period, not exceeding six months, as may be necessary to enable that justice to deliver judgement or do any other thing in relation to proceedings that were commenced before that justice previously to attaining that age.

157. Appointment of Justices of the superior courts on contract

1. A person who is not a citizen of Swaziland shall not be appointed as Justice of a superior court after seven years from the commencement of this Constitution.
2. Unless otherwise agreed between the contracting parties, a judge on contract shall vacate office at the end of the period provided in the contract.

158. Removal of Justices of superior courts

1. A Justice of the Superior Court of Judicature may only be removed from office in accordance with the provisions of this section.
2. A Justice of a superior court shall not be removed from office except for stated serious misbehaviour or inability to perform the functions of office arising from infirmity of body or mind.
3. Where the King acting on the advice of an ad hoc committee in the case of the Chief Justice, and on the advice of the Chief Justice in the case of any Justice of a superior court, considers that the question of removing from office the Chief Justice or a Justice on any ground stated in sub-section (2) ought to be investigated, the King shall refer the matter to the Judicial Service Commission for investigation.
4. The Commission shall enquire into the matter and recommend to the King whether the Chief Justice or the Justice ought to be removed from office.
5. Notwithstanding any provision of this Constitution, the King shall in each case act on the recommendation of the Commission.
6. Where the question of removal in terms of this section has been referred to the Commission the King may suspend from office the Chief Justice or the other Justice as the case may be for the duration of the inquiry.
7. Subject to considerations of fairness and natural justice, the Commission shall be reconstituted for the purpose as may be appropriate, the Chief Justice being replaced by the most senior Justice of the Supreme Court, and a Justice who is a member of the Commission being replaced by another Justice appointed by the other members of the Commission.
8. An inquiry in terms of this section shall not take longer than three months.
9. The King may at any time revoke a suspension under this section.
10. In this section “ad hoc committee” means a committee made up of the Minister responsible for Justice and Chairman of the Civil Service Commission and the President of the Law Society of Swaziland.

Part 4. Judicial Service Commission

159. Judicial Service Commission

1. There shall be an independent Judicial Service Commission for Swaziland, hereinafter in this chapter referred to as “the Commission”.
2. The Commission shall consist of the following-
   1. the Chief Justice, who shall be the chairman;
   2. two legal practitioners of not less than seven years practice and in good professional standing to be appointed by the King;
   3. the Chairman of the Civil Service Commission; and
   4. two persons appointed by the King.
3. In the exercise of its functions under this Constitution, the Commission or member of the Commission shall not be subject to the direction or control of any person or authority.
4. A Member appointed in terms of subsection (2) (b) or (d) shall hold office for a period not exceeding four years and shall be eligible for re-appointment for a further one period.
5. A member appointed in terms of subsection (2) (b) or (d) (where a member appointed under paragraph (d) does not hold the position of judge of a superior court) shall be removed from office by the King where the question of removal has been referred to a tribunal appointed in terms of subsection (6) and the tribunal has recommended that the member be removed from office-
   1. for inability to exercise the functions of office (by reason of infirmity of body or mind or any other cause); or
   2. for misbehaviour.
6. Where the Chief Justice represents to the King that the question of removing a member appointed in terms of subsection (2)(b) or (d) as mentioned in subsection (5) ought to be investigated, then –
   1. the King shall appoint a tribunal consisting of a chairman and two other persons selected by the Chief Justice (after consultation with the President of the Law Society of Swaziland) from among persons who hold or have held or qualify to hold high judicial office; and
   2. the tribunal shall enquire into the matter, and report on the facts to the King and recommend to him whether the member concerned ought to be removed under subsection (5).
7. Where the position of Chief Justice is vacant or for any other reason the Chief Justice is not available the most senior of the judges of the Supreme Court shall act as chairman of the Commission.
8. The Commission may by regulation or otherwise regulate its own procedure and, with the consent of the Prime Minister, may confer powers or impose duties on any public officer of the Government for the purpose of the discharge of its functions.

160. Functions of the Judicial Service Commission

1. Subject to any other powers or general functions conferred on a service commission in terms of this Constitution, the Judicial Service Commission shall, among other things, perform the following functions –
   1. advise the King in the exercise of the power to appoint persons to hold or act in any office specified in this Constitution which includes power to exercise disciplinary control over those persons and to remove those persons from office;
   2. advise the King on the appointment, discipline and removal of the Director of Public Prosecutions and other public officers as provided in this Constitution;
   3. review and make recommendations, subject to the provisions of this Constitution, on the terms and conditions of service of Judges and persons holding the judicial offices enumerated in subsection (3);
   4. receive and process recommendations and complaints concerning the judiciary;
   5. advise the Government through the Minister responsible for Justice on improving the administration of justice generally; and
   6. any other function prescribed by this Constitution or Parliament.
2. Without derogating from the provisions of subsection (1), the Commission has power to appoint persons to hold or act in any of the offices mentioned under subsection (3) including the power to exercise disciplinary control over those persons and the power to remove those persons from office.
3. The offices referred to in subsection (2) are –
   1. the office of –
      1. Registrar of the Supreme Court;
      2. Registrar of the High Court;
      3. Deputy Registrar of the Supreme Court;
      4. Deputy Registrar of the High Court;
      5. Master of the High Court;
      6. Deputy Master of the High Court;
      7. Magistrate;
   2. such other offices connected with any court as Parliament may prescribe.

161. Secretariat to the Commission

1. There shall be a secretariat of the Commission established in terms of section 183.
2. The functions of the secretariat shall be as provided under section 183 (2).
3. The secretary of the Commission, in addition to the functions in terms of subsection (2), shall among other things, organise and manage the secretariat, keep the chairman informed of all activities of the Commission and act as a public relations officer for the Commission.