MPs Bacede, Mthandeni still pushing to be freed
MBABANE – Hosea and Ngwempisi MPs Mduduzi Bacede Mabuza and Mthandeni Dube’s hope for freedom is still alive.
The incarcerated Members of Parliament (MPs) have since filed a notice of appeal in relation to the judgment that was issued by Judge Mumcy Dlamini on December 15, 2022, dismissing their third application for bail.
The MPs’ three bail applications were heard by Judge Dlamini, who also presided over their trial. The MPs are currently awaiting judgment on whether they are guilty of committing terrorist acts and murder or they will be acquitted.
Inciting
MP Mabuza and MP Dube, along with former Siphofaneni MP Mduduzi ‘Gawuzela’ Simelane, who is still at large, are accused of inciting members of the public to riot against the Government of Eswatini last year during the political unrest, which resulted in loss of life and destruction of public and private property.
Judge Dlamini dismissed the MPs’ first bail application based on that they made bare denials to the allegations made by the Crown. The judge said the High Court was functus officio when dismissing their second bail application. They took the matter to the Supreme Court and they were unsuccessful.
Matter
Functus officio means the court had already dealt with, and determined, the matter and it was no longer qualified to deal with it any further.
On May 15, 2022, the Supreme Court dismissed five of the MPs’ six grounds of appeal. The court also refused to condone them for filing their appeal notice in respect of the first bail application late.
The Supreme Court ordered that the appeal be struck off the roll and be reinstated upon obtaining leave of court.
Regarding the second bail appeal, the court substituted Judge Dlamini’s order of ‘bail application dismissed’ with ‘application removed from the roll due to being functus officio’.
The court also struck off the roll the new bail application and ordered that it was not to be pursued without leave of the Supreme Court. The MPs’ amended notice of appeal was struck off the roll and it is not to be pursued without leave of court.
The MPs filed a fresh application for bail after their trial was postponed for about three months in September 2022, arguing that new circumstances had arisen. Judge Dlamini dismissed the application on December 15, 2022. The judge gave her reasons for dismissing the application two and half months later, on March 3, 2023.
The legislators have approached the Supreme Court again. In their notice of appeal, MP Mabuza and MP Dube told the Supreme Court that Judge Dlamini erred in law and in fact in holding that they were bringing a third bail application when in fact this was a new application based on new facts and changed circumstances.
Erred
They also argued that Judge Dlamini erred in law and in fact in holding that the court was functus officio and the matter res judicata when the new bail application was based on new facts and changed circumstances.
Res judicata means that a matter has been adjudicated by a competent court and may not be pursued further by the same parties.
Judge Dlamini, according to the MPs, erred in law and in fact in holding that the court lacked jurisdiction to hear the bail application and ‘used the Supreme Court judgment, which was irrelevant on the new facts and changed circumstances’.
Judge Dlamini stated in her reasons for refusing bail that once a court of first instance had heard the first bail application and refused it, its hands were tied.
“It cannot hear a subsequent bail application no matter the grounds. To do otherwise would offend the dictates of the doctrine of functus officio and res judicata,” said the judge.
Res judicata means that a matter has been adjudicated by a competent court and may not be pursued further by the same parties.
Functus officio is having fulfilled the function, discharged the office, or accomplished the purpose, and, therefore, of no further force or authority.
Judge Dlamini also said the Supreme Court made a definite pronouncement on the position of the law as regard subsequent bail applications by the same parties under the same charge.
She said High Court was now bound by the principle of stare decisis (doctrine of precedent).
Circumstance
In their third application, which they argued, was a fresh application based on new circumstance, the MPs first raised a point in limine to the effect that the High Court was competent to entertain their bail application by virtue of Section 96 (1), (2) and (5) read with section 96(1) (a) and (b) of the Criminal Procedure and Evidence Act No. 67 of 1938. They further pointed out that their application was urgent.
The accused MPs stated that there was no likelihood that they would endanger the safety of the public or any individual or commit the said offences again.
They said they would not evade trial by reason that they had already testified in their defence that they were born and bred in the kingdom.
All the Crown’s witnesses, submitted the MPs, had already given evidence and, therefore, they could not be intimidated by them (MPs).
Undermine
They further told the court that there was no likelihood for them to undermine the proper function of the criminal justice system or disturb peace and public order.
The duo said the court may order proper conditions for their bail to ensure their further attendance to their trial.
Regarding the Crown’s case, the MPs pointed out that they had given evidence and that their defence reflected that the Crown’s case was very weak.
They had denied the evidence by the Crown’s witnesses and said all they did was to explain to the people about their constitutional rights.
The petitions delivery banning order, which was said to have been contravened by them, they submitted, was unlawful.
They denied that the riot by the people followed after they had encouraged them to continue with the delivery of the petitions.
Pertaining to the two counts of murder, the MPs informed the court that there was no iota of evidence incriminating them.
In response, the Crown also raised a legal point to the effect that the High Court lacked jurisdiction to entertain the matter by reason of it being functus officio.