CCiogua”ettstteospsseidœedsto”uncEtaiosnteo” f™aelceokehnodlǡ
MBABANE - The destruction of alcoholic beverages and cigarettes, that were seized by the police from two liquour outlets during the Easter holidays, has been stopped by the High Court.
The two liTuor outlets, Mathangamahle and .aNcosho, which are situated at Luve, were part of the nine that were closed on Easter Monday after they were found operating, yet it was a holiday.
The law enforcers did not only close the bottle stores but continued to seize the stock that was found inside, which they now intend to destroy.
Members of the LiTuor Licensing Board, in the company of the police, were carrying out an exercise, which they had dubbed ‘Operation Vala’, wherein they visited liTuor outlets to ensure that they complied with the rules and regulations of the industry, in particular the permitted operating hours and days.
Stock
Following this exercise, the Royal Eswatini 3olice Service RE3S obtained a court order at the Manzini Magistrates Court, which empowered them to destroy the seized stock.
The RE3S had moved the application in terms of Section 52 of the Criminal 3rocedure and Evidence Act 67 1938. Dissatisfied with the decision of the magistrates court, the owners of the bottle stores then decided to approach the High Court on an urgent basis, where they argued that the magistrates who heard their matters acted outside their powers.
The interim order interdicting the police was issued by -udge -ohn Magagula.
This was after the owners of the bottle stores moved urgent applications wherein they also contended that the destruction orders were obtained illegally and without following the correct procedure.
The business owners also want the High Court to review and set aside the sentences that were meted out on them by Manzini Senior Magistrate Sihle Dludlu and Acting Magistrate Thami Ndlovu.
The magistrates separately sentenced each of the accused to 10 months imprisonment with an option of a fine of E1 000 after finding them guilty of contravening the LiTuor Licence Act of 1964. In their different applications, they contend that the law provided that people charged under this Act, were to be afforded a fine of E100 or six months imprisonment.
Matter
Applicants in the matter are Thandekile *inindza, .heshwa Simelane .ancosho Bottle Store and Siphesihle Mnisi Mathangamehle Bottle Store .
Respondent in the matter are national commissioner NATCOM of 3olice, station commander of Mliba 3olice Station, Senior Magistrate Dludlu, Acting Magistrate Ndlovu and the attorney general A* . In their applications, the applicants contended that the two magistrates acted illegally and ultra vires beyond the powers the provisions of the LiTour Licenses Act of 1964.
“I was fined a sum of E1 000 wherein Section 229 1 of the Act provides that I should have been fined an amount not exceeding E100. I verily believe that the magistrate imposed a sentence beyond his jurisdiction,´ argued Siphesihle, who is one of the applicants. She narrated to the court that on April 13, 2023, she approached the magistrate for an order directing the return of the stock to the lawful owner
The list of some of the alcohol beverages the police intend to destroy
Stout 58 -750ml Castle Lite 52 cases of Castel Milk Stout 41 – 660ml Windhoek 41- 750ml Black Label 41-660ml Sibebe 15- 330ml Savannah Angry Lemon 15- 330ml Budweiser 15 cases of Sibebe 14- 440ml Strongbow 14-660ml Amstel 12 cases of 750ml of Castle Milk
12 355ml Corona Extra
10- 650 ml Hunters Dry -
of Mathangamahle Bottle Store. She alleged that the magistrate issued an order for the return of the stock to her in terms of Section 324 of the Criminal 3rocedure and Evidence Act of 1938.
Section 324 1 provides that “After the conclusion of any trial and subject to any special provision contained in any law, the court may make a special order as to the return to the person entitled thereto of the property in respect of which the offence was committed or of any property seized or taken under this Act or produced at such trial´.
Argument
It was further their argument that the magistrates acted illegally and ultra vires their powers, as they were not called to present the side of their story.
“:e were not called by the magistrates to give evidence when the orders returning the exhibits were issued. Since the magistrates did not comply with the provisions of Section 52 of the Criminal 3rocedure and Evidence Act of 1938, the destruction order is, therefore, null and void.
“The Act does not empower the station commander to approach the court at all,´ averred the applicants. They informed the court that, this was gross malicious procedural irregularity in the proceedings before the issuance of the destruction order.
“:e believe that the matters are urgent because the police are armed with the destruction order and a large stock of liTuour can be destroyed by them at any time.
“The destruction is imminent,´ submitted the applicants.
The applicants are represented by Leo Ndvuna Dlamini, while appearing for the respondents are lawyers from the chamber of the attorney general who are yet to file their papers on their behalf.