Minister of Justice and Constitutional Affairs, Prince Simelane, has been accused of using His Majesty the King’s name in an attempt to intimidate the courts.
This allegation is contained in an affidavit filed by Anti-Corruption Commission (ACC) Assistant Investigator Bonginkhosi Dlamini, who is challenging the extension of Acting Commissioner Maphevu Mkhatjwa’s contract.
Dlamini filed a replying affidavit before the High Court, responding to affidavits submitted by Mkhatjwa and the minister, who are cited as the first and second respondents, respectively.
Alleged Intimidation of the Court
“I state with respect that the second respondent misleads the court in claiming that only the King may remove the acting commissioner and makes a deliberate attempt to scare the court using the King’s name,” Dlamini stated in his affidavit.
The assistant investigator maintains that his suspension from the ACC was unlawful, arguing that both the acting commissioner and the minister acted beyond their legal powers.
CSC’s Role in Suspensions
Dlamini contends that only the Civil Service Commission (CSC) has the authority to suspend officers within the public service, unless explicitly excluded by law — which, according to him, is not the case with the ACC.
“I deny that the first respondent lawfully suspended the applicant. The Civil Service Commission retains the appointing authority in respect of all public service offices unless expressly excluded. No provision excludes the Anti-Corruption Commission’s officers from CSC jurisdiction.”
He accused Mkhatjwa of usurping CSC powers by invoking Section 58 of the Public Service Act of 2018 to justify his suspension — a move Dlamini says was made without statutory authority.
Questions on Acting Appointment
Dlamini further disputes the legality of Mkhatjwa’s appointment as Acting Commissioner, arguing that it did not comply with Section 7 of the Prevention of Corruption Act of 2006.
He said the law requires the minister to nominate one of the two deputy commissioners (Operations or Administration) to act when the office of Commissioner is vacant.
“The minister unlawfully treated the office as if there were only one deputy commissioner and disregarded clause 6.6 of Establishment Circular No. 4 of 2021, which requires that seniority, competence and qualifications be considered,” Dlamini submitted.
He added that Mkhatjwa, having just renewed his employment contract, was junior to the Deputy Commissioner for Administration, making his appointment arbitrary and unlawful.
Minister’s Affidavit Under Fire
Dlamini criticised the affidavits of both respondents as evasive and unsupported by law or evidence, saying the minister’s affidavit amounted to bare denials that carried no evidential weight.
“A respondent is required to engage specifically and meaningfully with the allegations made, and failure to do so renders the applicant’s version undisputed,” he argued.
He noted that the minister’s own affidavit confirmed Mkhatjwa’s initial acting tenure expired on June 19, 2024, and that any subsequent extension without a specified duration was unlawful.
Rule of Law and Accountability
“The omission of an expiry date in the extension of 20 June 2024 renders the appointment indefinite and unlawful. The principle of legality requires that public power be exercised in accordance with clear timeframes and safeguards,” Dlamini said.
He warned that the minister’s interpretation of the law undermined the independence of key public institutions, calling it a disregard for accountability and good governance.
Final Submissions
Dlamini submitted that both respondents failed to provide any legal authority or documentary evidence to support their positions.
“Their affidavits are riddled with contradictions, acknowledging expiry tenure on 19 June 2024 but simultaneously claiming indefinite continuation,” he said.
He concluded that the extension of Mkhatjwa’s appointment and his own suspension were both unlawful and contrary to the principles of good governance.
