Judge Phesheya faces recusal call

THE EswatiniMed legal saga has taken yet another dramatic turn, this time involving an application seeking the recusal of Supreme Court Judge Phesheya Dlamini.

The application, filed by EswatiniMed Principal Officer Peter Simelane, raises strong concerns about familial links between Judge Phesheya, Justice Ticheme Dlamini, and former EswatiniMed Chief Financial Officer (CFO) Nokuthula Dlamini, relationships which, according to the applicants, call into question the judge’s impartiality in the matter.

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Simelane, who brought the application together with Samuel Dlamini and the Eswatini Medical Aid Fund, explained in his affidavit that the respondents in the recusal application are the same as those in the main application brought under Section 148(1) of the Constitution. These respondents include Business Eswatini, the Attorney General, and the National Commissioner of Police.

According to Simelane, both the Attorney General and the National Commissioner of Police have shown intention to oppose the application for Judge Phesheya Dlamini’s recusal.

Business Eswatini, on the other hand, did not oppose the recusal but pointed out that it preferred a resolution that would allow the matter to be finalised. It proposed a variation of the Supreme Court’s order that had stayed the High Court proceedings so that it could proceed before Justice Ticheme Dlamini.

Simelane explained that the recusal application arises directly from proceedings presently pending before the Supreme Court.

The applicants had earlier sought and were granted an order staying contempt of court proceedings initiated by Justice Ticheme Dlamini against them. That stay, he said, was granted pending the determination of declaratory relief sought by the applicants. Among this relief was a declaration that ex parte orders issued by Justice Ticheme on 25 March were irregular and unconstitutional, along with a similar prayer concerning orders issued by the same judge on 25 July and 31 July.

The core of the applicants’ case, Simelane said, is that Justice Ticheme Dlamini was conflicted because of his close familial relationship with Nokuthula Dlamini, who at the time occupied the position of substantive CFO at EswatiniMed. More significantly, just before the proceedings instituted by Justice Ticheme, Nokuthula had been appointed interim Principal Officer by a faction of the Board—an appointment that Simelane insists was irregular.

Simelane maintained that he was the legitimate substantive Principal Officer at the time and that he enjoyed the support of a majority of the Board, including members representing the government, which is the principal shareholder of EswatiniMed.

According to him, a group within the Board purported to suspend him on June 20, but this effort lacked the necessary Board approval and thus had no legal effect. Simelane stated that, despite this attempted suspension, he continued to perform his duties as Principal Officer.

On June 25, an ex parte application was launched before Justice Ticheme Dlamini. According to Simelane, the applicants were neither notified of this application nor present at court when it was heard.

He submitted that Justice Ticheme subsequently granted the orders sought by the first respondent after hearing only one side. Simelane argued that this was not only irregular but that Nokuthula’s involvement created a scenario in which Justice Ticheme’s impartiality could not be reasonably assured, as she stood to be directly affected by the outcome of the proceedings.

It is against this backdrop that the applicants are now seeking that Judge Phesheya Dlamini recuse himself from hearing both the main application under Section 148(1) and an application for intervention brought by an intervening party. Simelane contends that Judge Phesheya is closely related to both Justice Ticheme Dlamini and to Nokuthula Dlamini.

In his affidavit, he states that Judge Phesheya’s father and Nokuthula’s father are brothers. Simelane asserts that Justice Ticheme Dlamini is a brother to both Judge Phesheya’s father and Nokuthula’s father, and that he is ‘a father to both Judge Phesheya Dlamini and Nokuthula Dlamini.’

To support his argument, Simelane referenced the Judicial Code of Ethics for the Judiciary of Eswatini. The Code, he noted, is intended to guide judicial officers when confronted with ethical questions arising from the performance of their duties. It also serves to inform the public of the conduct expected of members of the judiciary.

Part III of the Judicial Code of Ethics addresses circumstances in which a judge must disqualify himself or herself from a case. According to Part III(i), a judicial officer should recuse themselves from proceedings “in which his impartiality might reasonably be questioned.” Specific instances listed include situations where the judge has personal bias, personal knowledge of disputed facts, prior involvement as legal practitioner, financial interests that may be affected by the outcome or involvement of a spouse or close relative who may be affected by the case.

Simelane argued that the circumstances involving Judge Phesheya meet the criteria for recusal as outlined in the Code. Nokuthula Dlamini and Justice Ticheme Dlamini, both of whom have a personal interest in the outcome of the proceedings, are closely related to him. Therefore, Simelane submitted, Judge Phesheya’s impartiality may reasonably be questioned, particularly given the serious allegations forming the basis of the main application.

Simelane highlighted another development which he described as “unfortunate” and indicative of further conflict of interest.

He stated that Justice Ticheme Dlamini has, pending the finalisation of the main application, allegedly refused to hear matters in which the applicants’ legal representatives appear for other litigants. This, Justice Ticheme reportedly argued, was due to the fact that the representatives had “attacked his integrity” by acting for the applicants in the main case.

Simelane strongly criticised this position, stating that a recusal application is brought by litigants—not their lawyers. Lawyers merely act on instruction, he emphasised.

By refusing to hear matters where these attorneys appear, Justice Ticheme was effectively denying litigants their constitutional right to legal representation and access to justice. Simelane warned that such actions cast the justice system in a negative light and amount to a denial of justice.

Given all these factors, Simelane insisted that the impartiality of Judge Phesheya Dlamini may be reasonably questioned. The applicants therefore prayed that he recuse himself from hearing both the main application and all related proceedings.

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