The judicial crisis of 2011 was largely seen as a watershed moment – an opportunity for the Judiciary to transform itself into an independent, transparent and credible institution following the serious concerns raised by the legal fraternity at the time.
Coming out of that crisis, however, was a man the country was famously proud of – Michael Ramodibedi – who ultimately failed to maximise the opportunity to build the exemplary judicial institution many had hoped for.
When Ramodibedi was eventually jettisoned from his bedroom at the Judges’ Complex following that extraordinary stand-off with the authorities, out stepped Bheki Maphalala, the man Eswatini would now turn to in the hope of transforming the Judiciary.
The death of Chief Justice Bheki Maphalala, therefore, brings to an end an extraordinary chapter in the history of our country’s Judiciary. But even as the country mourns, his passing inevitably presents an opportunity to reflect on an institution that has spent much of the past decade under intense public scrutiny.
It is no secret that Maphalala divided opinion across the judicial, legal and political landscape of the country and this has been there for all to see in the weeks since his death was announced.
Many of us have our own personal experiences with the man who presided over the Judiciary and I have had a few encounters that will remain with me for a very long time.
On the face of it, Maphalala was a nice man – soft-spoken, humble and engaging. Beneath that gentle exterior, however, was an intense and powerful man who understood the considerable authority of the office he occupied and would not hesitate to exercise it when he felt circumstances demanded it.
One such encounter came sometime last year when we found ourselves in his chambers. In that characteristically soft manner, he warned that he could quite easily send me to jail for contempt of court. He said he was restraining himself and would instead settle for the newspaper publishing an apology and retraction.
What was unmistakable, though, was just how upset he was with the journalist who had got the judgment wrong – and whom he appeared to believe had done so deliberately.
That encounter gave me an interesting glimpse of the man behind the office: charming and measured, yet acutely conscious of the authority he wielded.
And perhaps that complexity explains, at least in part, the contrasting assessments of his tenure.
To some, Maphalala will be remembered as a strong administrator who presided over an important period in the development of the courts and became the first Liswati to substantively occupy the highest judicial office in the land. To others, particularly sections of the legal fraternity, civil society and progressive formations, his tenure became associated with persistent questions about judicial independence, the concentration of administrative authority in the office of the chief justice and the relationship between the Judiciary and political power.
Death should invite respect and Maphalala deserves the respect due to him as a Liswati who occupied one of the highest offices in the land – perhaps one that many would argue he was always destined for. But respect for the departed should not require us to suspend an honest examination of the institution they led.
That, for me, is the purpose of today’s article. Perhaps the most meaningful way to reflect on Maphalala’s almost 11 years at the helm is not to attempt a hurried verdict on the man, but to ask what condition he leaves the Judiciary in. In the weeks and months ahead, we should also ask what lessons Eswatini should take into the eventual appointment of his successor – when the time is, of course, right.
Maphalala assumed leadership of the Judiciary in 2015 at another moment of extraordinary institutional difficulty. His predecessor, Ramodibedi, had left office following a dramatic confrontation with the authorities and impeachment proceedings that exposed deep tensions within the administration of justice.
Maphalala was subsequently appointed substantive chief justice in November 2015, becoming the first Liswati to hold the office substantively.
There was therefore considerable significance attached to his appointment. After the turmoil that preceded it, this was an opportunity for the Judiciary to rebuild public confidence, strengthen its institutions and demonstrate unmistakably that the courts belonged neither to personalities nor political interests, but to the Constitution and the people.
Almost 11 years later, his death places the Judiciary at another crossroads. As tributes poured in and social media commentators took to their pages to offer their assessments of his legacy, it became inevitable to ask: how far have we travelled – if at all? That question is particularly relevant because, over the past decade, concerns have repeatedly surfaced about the administration and independence of the Judiciary, including questions around judicial administration, appointments and the institutional safeguards intended to protect judicial independence.
Those concerns did not, in themselves, constitute findings of wrongdoing against the chief justice. That distinction is important. The Law Society, of course, mounted its own challenge and sought to institute a process for his removal, but that effort ultimately did not succeed.
In his quiet, soft and measured way, Maphalala survived that challenge despite the considerable forces that appeared to have gathered behind it. That episode, whatever one’s interpretation of it, demonstrated just how well he understood the complexities, authority and institutional power of the office he occupied.
But our difficult conversation about the Judiciary cannot end with judicial independence or the personality of the chief justice. As mentioned earlier, the media has had a complex and sometimes difficult relationship with the Judiciary dating back to the Ramodibedi era. For me, therefore, any honest examination of the past decade must also confront the Judiciary’s relationship with another institution fundamental to an open society – the media.
It is no secret that over the years the courts have handed down significant defamation judgments against media houses, some accompanied by substantial damages awards. The Gelane Simelane matter, with its E580 000 award, remains perhaps the most striking example in our industry.
Every citizen is entitled to the protection of his or her dignity and reputation, and I am the first to accept that the media must be held accountable when it acts negligently, irresponsibly or unlawfully.
But the cumulative effect of such judgments has increasingly raised another concern of the chilling effect on journalism.
This matters enormously in a small and financially vulnerable media market such as ours.
The Judiciary should be an institution to which journalists can turn when their constitutional freedoms are threatened. Equally, it should be an institution capable of holding journalists accountable when they abuse those freedoms.
Those responsibilities are not contradictory. They are part of the same constitutional bargain.
That is precisely why the relationship between the courts and the media matters to the broader conversation about the Judiciary that Maphalala’s passing has reopened.
Perhaps the broader lesson from the past decade is that Eswatini makes a mistake whenever discussions about judicial independence become discussions exclusively about the personality occupying the office of chief justice.
Institutions should be stronger than the individuals who lead them.
The real test of an independent Judiciary is whether its structures make independence possible regardless of who occupies its highest office.
How effectively does the Judicial Service Commission perform its constitutional responsibilities? How are complaints involving judicial officers handled? How much administrative authority should reside in the office of one person? How does the Judiciary relate to the Executive without becoming beholden to it? How does it protect the citizen who finds himself standing against the State?
And how does it balance the legitimate protection of reputation and dignity against the equally important constitutional imperative of a free press? These questions will remain long after the mourning period for Maphalala has passed.
This is why the appointment of the next chief justice must represent more than simply filling a vacancy. It presents Eswatini with an opportunity to consider what kind of Judiciary it wants for the next decade.
The country needs an institution in which judges decide matters according to law and conscience without fear, favour or expectation of reward. It needs transparent and credible judicial administration. It needs a legal profession capable of challenging the courts without fear, just as it needs judges protected from improper pressure by politicians, litigants, lawyers, the media or public opinion.
Most importantly, citizens must believe that walking into a courtroom means entering a place where status, political connection and proximity to power do not determine the outcome.
The death of a chief justice is understandably a moment of mourning for his family, colleagues and those who knew him personally. Bheki Maphalala was also a Liswati who achieved something historically significant by becoming the country’s first substantive Liswati chief justice.
And when the mourning has passed, Eswatini will have to confront the more difficult conversation about the Judiciary he leaves behind. The past decade has contained institutional development and moments in which the courts asserted their place in the constitutional order. But it has also been accompanied by controversial judgments, contested appointments, persistent concerns over judicial independence, tensions with sections of the legal profession and a sometimes difficult relationship with the media.
The temptation now will be either to canonise Maphalala or condemn his entire tenure, neither of which would adequately capture the complexity of the man, the office or the moment.
What matters more is what comes next. Eswatini now has an opportunity to examine not simply who should become the next chief justice, but what institutional safeguards, culture and reforms are necessary to strengthen public confidence in the Judiciary itself.
That conversation must include the independence of judges from political power. It must include the administration and appointment of judges. It must include the relationship between the Bench and the legal profession.
And it must include the Judiciary’s role in protecting freedom of expression while ensuring responsible journalism.
Perhaps that is the most important legacy conversation Maphalala’s passing leaves us with. For the Judiciary is once again at a crossroads. And this time, the country should concern itself not merely with who takes the road ahead, but where that road should lead.
