By Bongiwe Dlamini

On the afternoon of the 18th January 2024, I unexpectedly received devastating news from Attorney Mr Selby Gama, former Registrar of The High Court of Swaziland, regarding the transition of the Honorable Mr Justice Josiah McCoys Matsebula from this life to the celestial jurisdiction. 

He had reached the ripe age of 88, having surpassed the Biblical blessed age of three score and ten (70) by a remarkable 18 years. 

Notwithstanding his advanced age, his demise was an unexpected and frankly unwelcome piece of news that I have to contend with today and in the days, weeks and months ahead.

It is accordingly necessary that I say a few words in honour of my departed Colleague. The irony is that in many cases, we do not for whatever reason, tell people of the impact they have had on our lives during their lifetime. It seems an unwritten rule that we tell of what they stood for on occasions when the subject is no longer there to gloat if need be, as we shower them with words of appreciation and gratitude.

When I was appointed as a Judge of the High Court of Swaziland in 1999, I was to fill the vacancy left by the untimely passing on of Mr Justice Ben Dunn - a tall order indeed. At the time, there were three Judges of the High Court, under the leadership of Chief Justice Stanley Sapire. 

The others were Mr Justice Matsebula and Mr Justice Stanley B Maphalala, in that order of seniority. I could not have found better human beings and professionals to guide me through the ropes as I took tentative steps in this supreme calling.

I was very young at the time - in fact young enough to be a son to Mr Justice Matsebula. He was born the same year as my late father. 

That notwithstanding, Justice Matsebula treated me as a colleague and equal. He displayed unusual camaraderie towards me, the vastness of the age difference between us notwithstanding.

I remember fondly when we used to be neighbours at Queens Gate in Mbabane. I would visit him at the house which is now a restaurant called Serendipity. I would find him sitting or lying down in the garden or veranda in the company of his beloved late wife and his dogs, which he loved dearly. Parked outside his carefully manicured lawn would be a collection of motor vehicles such as the BMW 325i and vintage Mercedes 450 SLC or other legendary motor vehicle. He liked vintage motor vehicles and enjoyed driving in them. I would be surprised if his taste would have changed because of his advanced age.

On some occasions, especially on Sundays, as I was preparing to attend church, Justice Matsebula would be at my gate and he would deliver the Times of Swaziland, Sunday edition. I would feel very uncomfortable but also honoured that an elderly gentleman, a senior judge for that matter, would go out of his way to run an errand for me, wholly unsolicited. At this time, I was staying far away from his place of abode but he would deliberately make a trip to my house to deliver the newspaper for my convenience. This was the mark of a man who was collegial, humble and considerate.

He would often tell me that he does not have long to serve the country as a judge. He encouraged me to always be steadfast in performing my duties and in line with the oath of office that I took. He offered me the opportunity, although being senior, to write a few judgments in matters in which we sat together. It does not lie with me to assess whether I have lived to his injunctions or expectations. With the events of the last few days, I unfortunately will not be able to hear or read his score card in this regard, in this the world of the living.

Humble and kind as he was, he did not take kindly to the cutting of corners or to dishonourable behaviour, such as extending undue favours as a judge. I remember him telling a colleague in very strong terms about treating people with partiality. He was firm and steadfast in his rebuke and I took note.

9. He had many stories to tell and some of them very funny indeed. I recall one in particular where as counsel, with the late Mr Samuel S. Earnshaw, they represented an accused person in a criminal trial at a magistrate’s court. The client believed in using traditional charms and insisted on Mr Earnshaw partaking in ingesting the ‘medication’. The client told them that if Mr Earnshaw took that stuff, he would have a smooth tongue that would persuade the magistrate to acquit the accused. Mr Earnshaw however stuck to his guns and told the client that his ‘medication’ that would persuade the magistrate lay in preparation by reading the law books which he was doing, including every morning before commencement of the proceedings. On one particular day, the client lost patience and while sitting in his vehicle reading and totally unaware, the client threw some powdery substance in Mr Earnshaw’s mouth. He withdrew as an attorney there and then and advised the magistrate of that fact at the resumption of the proceedings. I am not sure if the real reason for terminating the services were conveyed to the court. I doubt that very much though.

Justice Matsebula, being an experienced Judge, revered by many and feared by others, was in private, completely unassuming and kind. His heavily bearded face, with a spluttering of wisdom hair at the time, may have conveyed a judge who was brutal, merciless and devoid of kindness and humanity. As a human being, he was far from that. He had deep bowels of mercy. He literally wore his heart on a sleeve. As such, one of the things he would do easily and unashamedly, would be to openly shed a tear when his heart was overwhelmed and which was quite often. The lesson is that Judges, sitting in open court or chambers, for that matter, are very different when you meet them in other less formal or exacting surroundings. He always exhibited the human side of judges, including how human and vulnerable they can be.

I recall an incident when we were sitting with him in court on a criminal appeal. As we sat concentrating on the proceedings, we were shocked and I was vicariously embarrassed when his mobile telephone rang loudly in court. 

No one said a word, including the lawyers who appeared. He just switched it off immediately and it was business as usual. It was a matter of regret and laughter afterwards when we returned to his chambers. I learned that the worst of things may happen to the best of people at the worst of times. I thenceforth always left my mobile phone in chambers. I still do.

The last two meetings I had with him were quite remarkable. The first was during a memorial service of the passing on of his brother-in-law Dr AB Xaba, some years ago. I had not seen him in some time as he had retired and was living in Mpumalanga. He sat in solitude in a corner of the church building, quietly processing the departure of a person he loved and respected. I promised to visit him at some time but it is a matter of great regret that I did not.

The next time I saw him was when he presented himself unannounced to my chambers probably in 2010, after my return from my judicial sojourn in Botswana. Typically, he came in his shorts as he had retired at the time. Naturally, I was elated to see him. He confided that he had had some health challenges as he had undergone a triple bypass heart operation at the time. 

This procedure had eaten substantially into his pension, he told me. He lamented about how judges need to have their terms and conditions reviewed, especially after retiring, as life may not always be kind. I hope this has been or is being attended to with the necessary degree of urgency.

If I were to sum up Mr Justice Matsebula, I would use a few words - humane, generous of spirit, gracious, humble, respectful, forthright, God fearing and kind.

15. One of my wishes, was to see him as I have not done so in more than a decade. I managed to obtain his contacts but the number I was given would not go through. I attempted numerous times as I dreaded that a day like this would come without me having spent some time, even if the last moments, with him. 

Unfortunately, the time for his passing overtook me in that endeavour. Many times we become engrossed in the professional side of our lives and we regrettably neglect the personal and relational aspects, which are critically important to us as human beings. I feel guilty, reasons being immaterial, that I did not make or find the time to see him until his demise.

I would, at this time, wish to express my sincere condolences to the learned Judge’s family, especially his daughter of whom he spoke ever fondly. BoMkholo, we feel and share your loss. 

We pray that the Almighty will grant you strength, comfort, fortitude and the necessary dexterous ability to survive, accept and later live with this irreversible loss. I am sure that you have many fond and personal memories of him in his multifarious roles in your lives. Think of those good thoughts and celebrate a long life well lived.

Shannon Alder said the following profound words;

“Carve your name on hearts, not tombstones. A legacy is etched into the minds of others and the stories they share about you.” Justice Matsebula etched an indelible mark on my heart and I am sure on that of many others. For that, I am eternally grateful.

In closing, allow me to say that it does not normally matter how long you have lived. What matters is how well you have lived. Mr Justice Matsebula not only lived long but he also lived well and made a telling contribution to the legal fraternity in Swaziland, both as an attorney and judge. He was a prisoner of judicial conscience and did not prevaricate when justice beckoned him to take a road less traveled, even one laden with political land mines.

Last but by no means least, I would like to encourage members of our legal fraternity, both judicial officers and legal practitioners to write. We have lost so many senior judges and lawyers and their legacy remains interned with them in their graves. There is a judicial/legal history worth telling - of Mr Justice Ben Dunn, Justice AFM Thwala, Mr Douglas Lukhele, Mr Gudu Vilakati, Mr Thulani Masina, to mention but a few.

In closing allow me to say Fare thee well Mkholo lonsundvu. You shall always be sorely missed and remembered for your fatherly love and care. Siyobonana kulelitako.