Mbabane: The Supreme Court has dismissed an application by Eswatini Medical Aid Fund (ESwatini Med) Chief Executive Officer seeking the recusal of Judge Senzangakhona Phesheya Dlamini, ruling that a familial relationship alone is insufficient to establish bias or a reasonable apprehension of bias.
The judgment, delivered by the same judge Senzangakhona Phesheya Dlamini, sitting with Judge Nkululeko Hlophe and Judge Margriet Van Der Walt arose from ongoing litigation that originated in the High Court and later resulted in an application brought under Section 148(1) of the Constitution of the Kingdom of Eswatini Act, 2005.
The applicants cited as Simelane, Samuel Dlamini and Eswatini Med had approached the Supreme Court on an urgent basis on August 28, 2025, seeking, among other relief, a stay of contempt of court proceedings instituted by Justice Ticheme Dlamini under High Court Case No. 633/2025. They also sought declarations that certain ex parte orders issued on March 25, 2025, and subsequent proceedings on July 31, 2025, were irregular, invalid, and unconstitutional.
At the initial hearing, Justice Nkululeko Hlophe, sitting as a single judge, granted an interim order staying the contempt proceedings and directed that the matter be heard by a full bench of three justices due to its complexity.
The Registrar of the High Court subsequently applied to intervene in the proceedings as a fourth respondent. The matter was postponed to November 14, 2025, for hearing of the application for leave to intervene, with directions that all parties file the necessary court processes.
When the matter resumed on that date, counsel for the applicants raised an informal application for the recusal of Justice Phesheya Dlamini, who had been empaneled to hear the matter. The application was based on an alleged familial relationship involving Justice Phesheya Dlamini, Justice Ticheme Dlamini, and Nokuthula Dlamini, a former chief financial officer of ESwatini Med.
The applicants contended that the relationship created a perception of bias, arguing that both Justice T. Dlamini and Nokuthula Dlamini had interests that could be affected by the outcome of the proceedings. They relied on provisions of the Judicial Code of Ethics and Section 21 of the Constitution, which guarantees the right to a fair hearing before an independent and impartial court.
The informal recusal application was dismissed on the basis that no prima facie case had been established. The applicants were granted leave to file a formal application, which they subsequently did.
In their formal application, the applicants reiterated that Justice S.P. Dlamini’s impartiality might reasonably be questioned due to the alleged familial ties. They argued that a reasonable litigant would apprehend bias in circumstances where a presiding judge is related to individuals with an interest in the outcome of the proceedings.
The application was opposed by the Registrar of the High Court, as well as the second and third respondents. The first respondent did not support the application and adopted a watching brief.
In opposing the application, the Registrar submitted that the applicants had failed to provide sufficient factual detail regarding the alleged relationship and had not demonstrated how it would compromise the judge’s impartiality. The Registrar further outlined the genealogy of the individuals concerned, indicating that while they shared a common ancestor in King Sobhuza II, the relationship was remote.
It was submitted that in the context of Eswatini’s social structure, such distant familial connections are common and cannot, on their own, justify recusal. The respondents further argued that the applicants had failed to meet the legal threshold required for recusal, which is based on a reasonable apprehension of bias.
The court considered the applicable legal principles governing recusal, noting that judicial officers are presumed to act impartially in accordance with their oath of office. It emphasized that the test for recusal is objective and requires a determination of whether a reasonable, informed person would apprehend that the judge would not bring an impartial mind to bear on the case.
Justice Phesheya Dlamini stated that bias presupposes an interest in the outcome of the proceedings and that such interest must be direct and not remote or speculative. The court held that the existence of a link between a judge and a person connected to the case is not, on its own, sufficient to justify recusal.
The court found that the familial relationship relied upon by the applicants was remote and generational in nature. It held that such a relationship does not automatically disqualify a judge from hearing a matter.
The judgment further noted that no evidence had been presented to show that Justice S.P. Dlamini had any personal interest in the outcome of the case or any meaningful connection with the individuals cited by the applicants.
The court also observed that Justice T. Dlamini, whose orders were being challenged, was not a party to the proceedings before the Supreme Court and had not participated in the application for intervention.
In addition, the court pointed out that the matter was being heard by a panel of three justices, all of whom had taken an oath to uphold the Constitution and administer justice impartially.
Addressing the Judicial Code of Ethics, the court held that while it provides guidance, it does not have the force of law and does not specifically address relationships between judges in appellate and lower courts.
The court further noted that adopting a rigid approach based solely on shared ancestry would have impractical consequences in Eswatini, where many individuals share common lineage.
It held that the applicants had failed to establish a proper factual and legal basis for their claim and had not discharged the onus of proving a reasonable apprehension of bias.
The court concluded that granting recusal in such circumstances would undermine the proper administration of justice and could lead to an increase in unmeritorious recusal applications.
In its findings, the court held that the consanguinity in the present case was not of a nature that could, by itself, constitute a reasonable perception of bias. It further held that no cogent or convincing evidence had been presented to rebut the presumption of judicial impartiality.
The application for recusal was accordingly dismissed.
On the issue of costs, the court applied the general principle that costs follow the cause and ordered the applicants to pay the costs of the application.
The matter has been referred to the Registrar of the Supreme Court for the allocation of a new hearing date for the continuation of the main proceedings.
Discussion about this post