In 2021, judge Dhaya Pillay made headlines with her forthright responses to unfair and improper questions during a judicial service commission interview. Now retired, this lifelong defender of democracy and the rule of law is still making waves.
Just last week, she delivered a memorial lecture honouring Eswatini human rights lawyer Thulani Maseko, who was shot dead at his home in Mbabane in January. At the time, he was a doctoral student at the Centre for Human Rights in the University of Pretoria’s law faculty. It was this centre, in collaboration with the University of Eswatini’s faculty of law, the Law Society of Eswatini and other bodies, that invited Pillay to speak.
It was a most unusual address. In the first half, Pillay likened Maseko to those in the long line of human rights lawyers and defenders assassinated by the South African authorities under apartheid, and whose murders were never solved until the perpetrators came before the Truth & Reconciliation Commission.
She told the story of Maseko’s work as a human rights lawyer, his severe harassment by the authorities, his last hours and the abysmal silence over any ensuing investigation.
She stressed that “judges with conscience and imagination” will strive to find appropriate rules of law to apply in the circumstances of a case to achieve justice, and that “assassinations create martyrs” — in Eswatini, no less than anywhere else, given “contestation between pro- and anti-democrats”.
She then recalled that, at the time of his murder, Maseko was defending two MPs in a treason trial. And, she noted, Eswatini high court judge Mumcy Dlamini had delivered a lengthy judgment earlier this month, finding both of his clients guilty. Pillay compared this trial with prosecutions in South Africa during the last two decades of apartheid, when opposition leaders were charged for the violence of anti-apartheid protesters.
‘Contrived prosecutions’ of political opponents are symptomatic of ‘democracy in recession’
‘Unfit to be a judge’
At the halfway point, Pillay suggested the rest of her lecture should be a “simulation”: she would be the “voice” of Maseko, arguing an appeal against those convictions, while her audience would be “judges in the court of public opinion”.
Via this rhetorical device, she went on to poke holes in the judgment convicting Maseko’s clients, as though she were indeed the late lawyer arguing his clients’ appeal.
It was a scathing analysis, based on Eswatini’s own constitution and the rule of law, and it began by noting that under Eswatini law, the separation-of-powers principle does not exist: “The king prevails over the judiciary, executive and legislative branches of government.”
She also suggested that there might have been “undue influence” in Dlamini’s judgment as, by an “unsustainable leap of logic”, the “learned judge” had found that speeches by the two MPs, calling for elections and encouraging people to file petitions to that end, resulted in “death, injury, damage to property”.
Then Pillay dealt with Dlamini’s finding that the accused were guilty, not just on the first count, but also on the first and second alternative charges.
This was startling because, when a court finds an accused guilty on the main count, the alternative counts fall away. The order in the MPs’ case “is, with the greatest respect, not the work of anyone qualified to practise law”, said Pillay (speaking as Maseko).
In that guise, she added that though the judgment purports to bear Dlamini’s signature, the “court of public opinion” should find that Dlamini, with more than 10 years’ judicial experience, could not have issued it, “for if you were to find that she did issue that order, then you must also find that she is unfit to be a judge”.
She concluded “Maseko’s” address by saying that “contrived prosecutions” of political opponents are symptomatic of “democracy in recession”. Speaking directly to the “court of public opinion”, she said: “You want peace and prosperity for all people. You value democracy, human rights and the rule of law. You are independent and impartial ... Accordingly, I ask that my clients be found not guilty, be acquitted ... and released from prison forthwith.”
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