27 January 2016

Swaziland: A Matter of Justice - How a Court Found a Way to Right Its Wrong

analysis

In its last case of the year Swaziland's newly-constituted highest court has set the record straight in one of the most bizarre cases ever heard in that country: five judges of that court have overturned a decision made just months before by their former colleague, disgraced ex-chief justice of Swaziland, Michael Ramodibedi.

This was the case of Impunzi Wholesalers against the Swazi revenue authorities, and it was Ramodibedi's initial decision in that case delivered in March 2015 that finally led to the downfall of Ramodibedi on allegations of corruption.

With Ramodibedi's fall and exit from Swaziland, the Impunzi case took on almost symbolic significance and it was crucial for justice, not to mention public confidence, that the new Supreme Court find a way to undo his initial decision.

Impunzi, owned by a Chinese businessman, Jen Huang, is under investigation for an alleged scam involving the importation of goods into Swaziland. The quilts they brought in were declared to have a value of $1.50 when they arrived in Swaziland, but when they were later taken into South Africa their value was said to be far more.

The revenue authorities in both South Africa and Swaziland began investigating Impunzi, and, according to an expose by the M&G last year, Swazi revenue officials estimated they had lost between R10 and R25m in the scam.

Giving the background to its latest decision the Swazi Supreme Court said the revenue authorities in Swaziland initially accepted the declared value of $1.50 per quilt, but in June 2014 they seized a consignment of quilts from Impunzi, saying they were undervalued at $1.50 and should have been valued at $14.33.

A dispute then raged between Impunzi and the revenue authorities until Impunzi was informed that if it did not pay R50mn in duties as demanded by the revenue authorities, the quilt consignment would be forfeit to the state. That prompted the company to head for the High Court where it asked that the revenue authority's $14.33 determination should be set aside.

Judgment in that high court application, delivered in February 2015, dismissed the application by Impunzi on preliminary grounds raised by the revenue authorities: the matter wasn't urgent, Impunzi had not exhausted the remedies provided in the legislation, and should have first appealed to the Minister of Finance. Because the case was dismissed on these technicalities, the actual dispute between the two parties over the value of the quilts was not dealt with by the High Court.

Almost immediately Impunzi appealed to the Supreme Court and on 6 March 2015 the appeal was heard by Ramodibedi. A week later he delivered an astonishing judgment, setting aside the High Court decision, declaring the revenue authorities wrong in their assessment, restoring the $1.50 valuation, and ordering the Swazi revenue authorities to pay not just the legal costs, but also all the costs associated with the seizure of the consignment of quilts.

The M&G report gives some of the deep background to what had allegedly been going on behind the scenes: according to an affidavit by Judge Mpendulo Simelane, one of Ramodibedi's former colleagues, he was called to the home of then Justice Minister Sibusiso Shongwe to discuss a 'sensitive' matter.

Simelane said Shongwe indicated that Ramodibedi had a financial problem but that there was 'money to be made' in cases over which the judges were presiding. According to Simelane's affidavit Shongwe explained there was a case involving wealthy business people operating Impunzi Wholesalers who were suing the revenue authorities for goods they had imported. They were willing to pay about R2m for help in winning the case. Shongwe suggested that Simelane should preside in the case and explained how the promised R2m would be split between the three of them. He said that he and Ramodibedi had already discussed Simelane's involvement.

Simelane declined and left, but even before he reached his chambers the Chief Justice called him and said there was an urgent High Court matter involving imported goods that he had allocated to Simelane.

Simelane declined to hear it and the matter was dealt with by another judge who, as we have seen, found against Impunzi. A few days after the decision Ramodibedi called him again to say Impunzi would be appealing against the High Court judgment and a special sitting of the Supreme Court had been arranged.

Once again Simelane avoided the case and it was heard instead by Ramodibedi and two other judges, one of whom, according to the M&G, has since become a state witness.

A month after Ramodibedi's appeal decision favouring Impunzi, a warrant was issued for the arrest of the Chief Justice, citing corruption and abuse of power. That was the beginning of the end of his tenure and soon he had left Swaziland in disgrace. Shongwe, the former Justice Minister was also arrested and trial in his matter is still pending.

Following Ramodibedi's decision favouring Impunzi, the revenue authorities decided to go back to court, and to rectify the apparently corrupt judgment against them. That matter was heard in November 2015 with judgment given in December.

The new decision is a model of discretion. Ramodibedi's name is mentioned only once - in the context of naming the panel that heard the initial appeal. But everyone involved in the case was clearly aware of the significance of the matter being argued. The big question was what legal mechanism could be used to enable the highest court to reconsider the outcome of a case which, differently constituted, it had decided only a few months earlier. And the answer lies with section 148 (2) off the Swazi constitution which says the Supreme Court may 'review' any decision made or given by it. It was a power to be used only in exceptional circumstances, said the court. Such as those involving 'fraud, patent error, bias, new facts, significant injustice or absence of an alternative remedy'.

It was not to be used by dissatisfied litigants merely wanting a 'second bite at the cherry'. The court would also have to be very careful in developing a jurisprudence in this field, showing great responsibility and giving guidance for the future. It would need to balance very carefully respect for the need for finality in litigation against 'the need to do justice where serious irregularities have occurred resulting in a gross miscarriage of justice'.

In the end it was Ramodibedi's insistence on hearing the merits of the case - the actual argument about whether the revenue authority was right in the amount of duty it imposed - that provided a way out for the new court.

The judges said that for the Supreme Court to have determined the merits on appeal was 'a serious irregularity which caused a gross miscarriage of justice'. The Supreme Court - for which read Ramodibedi - 'castigated' the trial judge for dismissing Impunzi's application against the revenue authorities on technical preliminary argument and then went on to decide the merits of the case itself.

This the court should not have done. Instead the Supreme Court should have sent the application back to the High Court to determine the merits. And this, said the reconstituted Supreme Court, is what it proposed to do now.

Thus the dispute between Impunzi and the revenue authorities has been sent back for a full hearing - with a great many new facts in the public domain - in the High Court, before another judge who was not involved first time round.

By now you would imagine that the revenue authorities have obtained proof that they will produce of the scam whose concealment lay behind last year's efforts to buy off the judiciary and the Justice Minister.

Everything seems to indicate that this time round Impunzi won't find the court experience quite such a walk in the park.

Swaziland

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