Lawyer Zweli Jele of Robinson Bertram law firm has stated that Mangaliso Magagula of Magagula and Hlophe Attorneys had an option to fire a complaint to the Judicial Service Commission for it to carry out an enquiry.
Jele, who indicated that he was representing Galp Eswatini, said this in his heads of arguments filed at the Supreme Court where the matter was argued yesterday. In this case Magagula seeks for the court to set aside the decision by Judge Titus Mlangeni, banning him from appearing in his court on the grounds that the decision was irregular, invalid, unconstitutional and ultra vires.
According to Jele, though Magagula has not used the phrase judicial review, it is evident that the nature of the relief sought is one of judicial review. He submitted that the court’s jurisdiction under section 148 (1) does not extend to the review of decisions of the High Court.
“This court does not have jurisdiction review decisions or conduct oproceedings of the High Court, but can only exercise supervisory jurisdiction,” Jele argued.
He stated that it was not within the contemplation of the drafters of the Constitution to clothe the court with powers to review decisions of the High Court. According to Jele, the real enquiry is the justiciability of the issues that have been brought to court by the applicant.
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“Justiciability in this context refers to whether the issue can be dealt with appropriately in an adjudicatory judicial forum. Whether an issue is a justiciable is itself a justiciable issue to be decided by the court,” Jele submitted.
He stated that in weighing the competing policy considerations, the court has to consider a polycentric nature of the enquiry before it is given the issues that preceded the ban. He submitted that the applicant made a reference to ‘history between his firm and the judge’ and the judge made reference to “previous conduct,” details of which are not presented before court.
“There exists a parallel remedy for the applicant which is to report a complaint to the Judicial Service Commission as opposed to seeking to invoke this court’s supervisory jurisdiction. It is submitted that in the present context the court should exercise deference to the Judicial Service Commission premised on the nature of the issues.
The latter premised on the composition and epistemic authority that exists within the JSC, which we submit to and better suited to deal with matters of this nature,” Jele submitted. He stated that the court’s supervisory jurisdiction is not supposed to be a forum for all complaints that a litigant intends to raise concerning the conduct of a judicial officer. According to Jele, certain conduct requires to be dealt with in an appropriate forum.
“It has been stated in the matter of McGregor and others supra, that the court’s supervisory jurisdiction is discretionary in nature and a not a matter of right and can be refused where there is an effective alternative remedy,” he submitted.
According to Jele, in the present matter, competent legal remedies exist and are available to the applicant. One submitted that one such remedy has already been invoked.
“The other is to forward a complaint to the JSC for it to carry out an enquiry. It is not open for a litigant to seek to pursue similar remedies in two different fora. This amounts to forum shopping which is, in essence an abuse of court process,” Jele submitted.
He stated that having regard to these submissions, it is apparent that the applicant has not established the requirements for the invocation of the court’s supervisory jurisdiction.
“The applicant’s resort thereto, in the circumstances is startlingly inappropriate. In the premises, the application stands to be dismissed with costs,” Jele stated. This court has also made it plain that, the requirements to invoke its supervisory jurisdiction is based on exceptional circumstances which are beyond ordinary adjudicative contemplation” and which involve “manifest injustice, irremediable by normal court processes.” Jele also explained that whilst the applicant alleges, in his founding affidavit, that there are exceptional circumstances, he does not demonstrate that these circumstances fall beyond ordinary adjudicative contemplation and involve manifest injustice, irremediable by normal court processes.
He stated that neither are these requirements addressed in the applicant’s heads of argument.
According to Jele, the irresistible inference is that there are no exceptional circumstances of the nature contemplated by the court to invoke its jurisdiction with the result that the application stands to be dismissed with costs.
