Mbabane – Parallel High Court matters filed by the on suspension Anti-Corruption Commission (ACC) assistant investigator, Bong’nkosi Dlamini, and the arrested Assistant immigration officer, Misiwe Jele, challenging the acting commissioner, Maphevu Mkhatjwa, of unlawfully occupying office and abusing his powers.
They both filed the matters in the month of August.
They argued that Mkhatjwa’s appointment violates the Prevention of Corruption Act No. 3 of 2006 and public service rules.
Mkhatjwa has been in office on an acting basis since December 2023.
The Judiciary Service Commission (JSE) recently advertised the ACC commissioner and the Director of Public Prosecutions (DPP) positions. The positions are open to Eswatini citizens who hold a LLB and qualify to be appointed as High Court judge.
Jele’s challenge: questioning the arresting authority
Jele filed the matter after her arrest, facing 14 counts of corruption-related charges.
She was accused of abusing her position as an assistant immigration officer at the Ministry of Home Affairs by unlawfully issuing entry permits to foreign nationals, including Pakistan citizens, without committee approvals.
She was arrested by ACC officers after they obtained a warrant signed by Chief Justice Bheki Maphalala. But Jele is now challenging not just the charges, but the authority behind them.
In her court papers, she argues that Mkhatjwa’s term as acting commissioner expired on 21 June 2024.
He was appointed on 21 December 2023 for a six-month acting period by the Minister of Justice and Constitutional Affairs, a tenure she says was unlawfully extended.
She cites section 5(1) of the Prevention of Corruption Act and clause 4.8 of the Public Service Establishment Circular No. 4 of 2021, which both limit acting appointments to six months. She further submits that Mkhatjwa lacks the qualifications required for the role, which demand an LLB or eligibility for appointment as a High Court judge.
Consequently, Jele’s argument is that any actions taken by an unlawfully appointed commissioner are “null and void,” including her arrest.
Dlamini’s fight: challenging internal powers
The challenge against ACC is not only coming from outside the commission but even from one of its senior officers, Bong’nkosi Dlamini, who took the High Court rule.
ACC assistant investigator has also dragged Mkhatjwa to court, challenging his suspension from work.
In a case filed through his attorneys, Mkhabela Attorneys, Dlamini names Mkhatjwa as the first respondent, the Minister of Justice and Constitutional Affairs as the second, and the Attorney General as the third.
Dlamini’s affidavit alleges he was suspended on 9 October 2024, after he had successfully challenged an ACC’s unlawful search warrant in case No. 1227/2024, in which the High Court quashed the warrant obtained under Mkhatjwa’s supervision.
He claims his suspension was retaliatory and procedurally flawed.
According to Dlamini, section 58 of the Civil and Public Service Commission Act requires the commissioner to only recommend suspensions to the Civil Service Commission, not to execute them directly.
However Dlamini argues that Mkhatjwa “unlawfully usurped the powers of the Civil Service Commission” by issuing the suspension himself. This act, according to Dlamini renders the suspension null and void.
He also echoed Jele’s assertions about Mkhatjwa’s qualifications, saying the acting commissioner does not meet the legal criteria to hold the office of the ACC commissioner.
“This ultra vires act, I am advised, renders the suspension null and void as the first respondent had no legal power to issue it unilaterally,” reads Dlamini’s affidavit.
According to a comment sourced from a legal practitioner who commented on a condition of anonymity, these cases could undermine the legitimacy of the ACC’s work if the court rules in favor of these applicants. Both challenges frame Mkhatjwa’s continued stay in office as a threat to the independence and credibility of the institution.
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