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MBABANE – The UNESWA final-year student, who allegedly killed his girlfriend, was denied bail for the third time yesterday.
Judge Sabelo Masuku said all the bail applications by Nicky Nhlanhla Boois (24) of Thunzini, came under the same facts, charges and similar circumstances.
The judge said on the face of it, and upon reading an earlier judgment by Judge Bongani Dlamini, the facts, evidence and cause of action, the court was functus officio. The doctrine of functus officio (that is, having performed the office) holds that once an arbitrator or judicial officer renders a decision regarding the issues submitted, he or she lacks any power to re-examine that decision.
The Bachelor of Science final-year University of Eswatini (UNESWA) student allegedly stabbed his girlfriend, Nonduduzo Mabuza, with a knife once in the chest and three times in the back. The incident happened on March 18, 2022 at Madonsa in Manzini.
Investigation
Judge Masuku said the court could not ignore Boois’s first bail application because the results of its investigation, and perusal of it, revealed a striking resemblance of the facts, the cause of action and the reasons for judgment.
“The applicant (Boois), it would seem, is bringing back to the same court the same cause of action, when he should have appealed the judgment if he was not satisfied with the results,” said the judge.
Ever since his arrest, Boois has been always desirous to be urgently released on bail, mainly because he had been enrolled as a final-year Bachelor of Science student at UNESWA.
He viewed his incarceration as causing prejudice to his future as he should be completing his studies and that he has a child who depended on him for his daily needs. The accused alleged that he had developed illness in custody, related to his spinal cord and left leg that had developed unbearable pain, among other illnesses.
He also told the court that he developed a further illness that could be cured only by traditional medicine, which is not allowed to be used in the Correctional Services facility.
Judge Masuku further said Boois had told the court that, although the court in its earlier judgment had directed that the Social Welfare Department at the Correctional Services should take reasonable steps in ensuring that he had access to all his study material, and be afforded sufficient time to study, that had been denied to him by the department.
He said he thus failed his final year at the university and was on the verge of being deregistered by the institution, if he did not register by March 30, 2023. He submitted that he was cautioned by the university that failure to register for four consecutive semesters would result in discontinuance, which would then require him to re-apply and the requirements would have changed when he re-applies in the future.
The Crown opposed Boois’s bail application. Crown Counsel Nqobile Mhlanga informed the court that being a final year university student did not constitute exceptional circumstances. Mhlanga said Boois could still resume his studies upon being acquitted of the charge he is facing since he alleged that he was innocent.
The Crown further submitted that in their bid to have to Correctional Services commissioner general comply with the previous order of the court to assist him to write his examinations, the latter discovered, when liaising with the university, that the accused did not qualify.
“He did not have the required continuation assessment mark (CA). The applicant had forwarded a request to the university asking that he be withdrawn from writing his examination because of his incarceration. The university responded and accepted his withdrawal. He also asked the scholarship Board to withdraw its assistance and they have also withdrawn it.
“The result is that the applicant has been withdrawn from his studies since July 11, 2022 and is currently not registered as a final year student of the university. The Crown submitted, therefore, that there are no new exceptional circumstances that have been introduced by the applicant in this application,” reads part of the judgment.
Interfere
Secondly, the Crown submitted that Boois was likely to interfere or intimidate the Crown’s witnesses. The accused, it was argued, had a history of threatening witnesses of the Crown and still held that propensity. He is alleged to have previously made threats to one Mlungisi Dlamini, who is a key witness.
Thirdly, the Crown argued that Boois was aware that he would be facing a lengthy conviction if convicted and therefore likely to evade trial. Mhlanga said Boois was likely to evade trial.
Judge Masuku stated that in a judgment issued by Judge Dlamini, who heard Boois’s previous bail application, almost all the facts, issues, cause of action raised in that application were strikingly similar to the present facts.
“I could not help but conclude that this court is indirectly asked to review its earlier judgment. I could not fathom how it escaped the respondent from raising a res judicata point in this regard, because the applicant should have appealed the earlier judgment in the absence of new evidence or new facts for this application,” said Judge Masuku.