A good article in the Times of Swaziland today outlines one reason the legal profession is so irate with the Chief Justice (HERE). A lot of the anger stems from a directive that bans "indirectly" naming His Majesty as a respondent in any legal claim. But how is the Registrar of the Court (the person responsible for accepting and filing legal claims) to know when such a claim begins to tread on the cloth of the King and iNgwenyama? One can hardly turn over a stone in Swaziland without finding some remnant of the Royal family there. And even before this, how could a lawyer make this determination? The case that started this whole mess only involved members of the police and the King's Office (HERE). If members of the King's Office are granted the legal immunity of the King (s 11) and iNgwenyama (s 228), does this extend to Ministers of the Crown? Chiefs?
Bear in mind that probably half the legal profession nurture the vague hope of being some sort of senior government official or minister somewhere along the line. From that point of view, the job of being a lawyer under such conditions becomes impossible.
Written law only works to the extent that words are attached to some meaning, and there is a clear path to amend the meaning or discuss the words. Sections 11 and 228 relating to the legal immunity of the King and iNgwenyama should be given shape the same way as any law is given shape, through court cases. The Chief Justice's directive circumvents this by using a 'procedural power' (regulating the administrative functioning of the courts) to make 'substantive law' (about the scope of the immunity of the King and iNgwenyama). This would seem to be 'ultra vires' (beyond the power) of the Chief Justice's authority.
More obviously, for anyone with a claim that is prevented by this directive, it violates s 21 the right to a fair hearing, which states that "[i]n the determination of civil rights...a person shall be given a fair and speedy public hearing." It is unclear whether s 35 (standing) would allow any lawyer or person to challenge the directive on this ground.
