No problem with Matsapha Maximum now – Sipho Shongwe
MBABANE – Sipho Shongwe says the Supreme Court judgment in the matter in which the commissioner general appealed the decision to remove him from Matsapha Maximum Prison is academic.
Shongwe, who is accused of the murder of Victor Gamedze said the judgment has been overtaken by events in that he no longer had a problem with his stay at Matsapha Maximum Prison.
His Majesty’s Correctional Service commissioner general had approached the Supreme Court after Judge Nkosinathi Maseko issued an order on June 16, 2021, that Shongwe be detained in another Correctional facility and not at Matsapha Maximum Prison.
Judge Maseko had ordered that Shongwe should not spend the night of June 16, 2021 at Matsapha Maximum Prison. The commissioner general filed a rescission application against Judge Maseko’s order and the court dismissed it. Being dissatisfied with the decision of the court, the commissioner general filed an appeal in the Supreme Court.
The appeal was heard by Judge Phesheya Dlamini, sitting together with Judge Majahenkhaba Dlamini and Judge Robert Cloete. They issued their judgment yesterday. Judge Majahenkhaba dissented.
Judge Phesheya and Judge Cloete ordered that the matter be referred back to the High Court for oral evidence before a different judge. They also ordered that the order of the High Court dismissing the rescission application be set aside and substituted with ‘this matter is referred to oral evidence’. Judge Maseko’s order at the High Court, the Supreme Court ordered, is to be held in abeyance pending the outcome of the hearing before the High Court.
Judge Majahenkhaba issued a minority judgment setting aside Judge Maseko’s decision of June 16, 2021. According to Judge Majahenkhaba, the commissioner general’s appeal succeeded.
However, Judge Majahenkhaba’s judgment is dwarfed by the majority judgment issued by Judge Phesheya and Judge Cloete. This means that, by majority rule, Judge Majahenkhaba’s judgment does not stand against his colleague’s judgment.
When Judge Maseko made the decision that Shongwe be detained elsewhere other than at Matsapha Maximum Prison, he had informed the court on June 16, 2021 that he was not well.
HUMILIATED
“I am someone who is not well. I have been very much humiliated. There is an incident that took place yesterday (June 15, 2021), and unfortunately it was not for the first time. There was a routine search yesterday. During that search, there is a young man (warder) who then pulled me by my private parts. When I enquired as to why he was pulling me by my private parts, they then threatened to assault me.
“At the Correctional facility, My Lord, ever since there has been new management, some inmates are being beaten in front of us. When I was threatened with assault, I then got scared. There have been many incidents, My Lord, which I do not want to burden this court, narrating. My Lord, I was very much surprised by yesterday’s incident. I reported the previous incidents to one of my attorneys, who in turn went to meet the commissioner general, who promised to come back to us with a response thereto. Then I was shocked yesterday when I was pulled by my private parts. I sent my grievance to those in charge yesterday or the seniors, but there was no remedy,” Shongwe informed Judge Maseko at the time.
Shongwe, who was represented by Lucky Howe in the matter, said the judgment by the Supreme Court was academic because he was seeking assistance when the incident he was complaining about happened in 2021.
He said the management that was at the helm during the period of the incident had been removed and a new management moved in. As a result, he said he no longer faced the problem he complained about to the court in 2021. “I was seeking assistance as I was not treated well at that particular time. It was the management of that period and the people they were working with. They were personal for reasons known to them.
MANAGEMENT
“Now there is new management working with new people. I don’t have a problem with them. It (judgment) has been overtaken by events and it no longer assists me. Instead, it cost me more than anything,” said Shongwe.
He stated that it is one’s constitutional right to go to court when they have a grievance ‘kuze ungalimali, phindze ungalimati lomunye umuntfu’.
Shongwe pointed out that he did not have an issue with the Correctional institution but the management of that period and the people they were working with. “They were personal. You see, when you fondle someone’s private parts, you are being personal. That’s the problem I had, not with the institution. They wanted to create an impression that I wanted to be detained in another Correctional facility yet that was not the case.
As it is, I’m okay. Ngihleli.
“I have been there even before that management came in and that is where the problem was. So, no matter the outcome of the matter, I now stay at the Correctional facility under a new management and people who are professional and correctional, if I may put it that way. I no longer have a problem. I have no grudges with anyone or the department. It was only people who were personal with me because of whatever reasons they had,” Shongwe explained.
The order by Judge Maseko to detain Shongwe in another Correctional facility was not complied with and Assistant Attorney General Mbuso Simelane told the court in 2021 that the commissioner general had the discretion to decide where to detain an inmate.
In the majority judgment, Judge Phesheya said the commissioner general, like all litigants before all the courts in Eswatini, was enjoined by law to fully respect orders issued by the courts unless and until such orders had been set aside or rescinded.
Judge Phesheya stated that the matter raised very important constitutional rights, including the right of an incarcerated person to be held with dignity and not subjected to torture in any form in their place of custody and also the full right of the commissioner general to administer the Correctional facilities in a manner which was prescribed by the relevant legislation.
The judge further said the courts, on adjudicating on any matter, must rely on sufficient evidence to make the ultimate orders which flow from the proceedings. “In the circumstances of this matter, it appears that various allegations were made by both parties, which were not fully ventilated and argued be
fore the court a quo (High Court).
“Needless to say that the matter raises very important constitutional rights including the right of an incarcerated person to be held with dignity and not subjected to torture in any form in their place of custody and also the full right of the Commissioner to administer the Correctional facilities in a manner which is prescribed by the relevant legislation.
“In my view, the matter should accordingly have been referred to the court a quo for it to hear oral evidence in order for that court to fully test and interrogate the relevant evidence before making an informed decision and making the correct order,” said Judge Phesheya.
He said the Supreme Court was not in a position to speculate on the relevance of some of the untested facts set out in the papers before the High Court.
On the other hand, Judge Majahenkhaba said the commissioner general had an interest in the subject-matter of the court order, sufficiently direct and substantial, to have entitled her to be a party in the respondent’s unsworn application upon which the order was granted.
“There is no doubt in my mind that applicant has a legal interest in the subject-matter that could be prejudicially affected by the order in issue. All in all, it seems to me that on the consideration of the judgment and pleadings, the court a quo ought to have heard the applicant since the failure to comply with the order of June 16, 2021 had not occurred on the June 18, 2021 or, if it had occurred, it had been purged by compliance, when the application for the rescission was launched,” said Judge Dlamini.
Shongwe will return to court on April 24, 2023 for the continuation of his trial before Judge Maseko.