PUDEMOpresident,others’applicationdismissed
MBABANE – The counter-application by PUDEMO President Mlungisi Makhanya and others to deem government’s appeal against the declaration of certain provisions of the Sedition and Subversive Activities Act of 1938 and Suppression of Terrorism Act of 2008 abandoned has been dismissed.
The Supreme Court yesterday also granted government’s application to be allowed to file a record of proceedings out of the stipulated time (condonation).
The court further granted government leave to amplify its grounds of appeal as set out in the supplementary notice of appeal and to file its heads of argument. The respondents were also granted leave to file their supplementary heads of argument, if any, within 21 days from yesterday.
Matter
Appellants in the matter are the prime minister (PM), minister of Justice and Constitutional Affairs, the director of public prosecutions (DPP) and the attorney general.
Respondents include the People’s United Democratic Movement (PUDEMO) President, Makhanya, Human Rights Lawyer Thulani Maseko, former Swaziland Youth Congress (SWAYOCO) Secretary General (SG) Maxwell Dlamini, former PUDEMO President Mario Masuku and others.
The matter was heard by the Chief Justice Bheki Maphalala, Acting Judge Mabandla Manzini, Judge Stanley Maphalala, Acting Judge Andreas Lukhele and Acting Judge Judith Currie.
Acting Judge Manzini said the court was inclined to find that no prejudice would be suffered upon any of the respondents if government was granted leave to amplify or raise additional grounds of appeal as set out in the supplementary notice of appeal and to file heads of argument.
Prejudice
“Any potential prejudice to the respondents can adequately be ameliorated by an order granting them leave to file their own supplementary heads of argument, if they are so minded,” said the acting judge.
The judgment being appealed against was issued by the High Court on September 16, 2016.
A majority of two (Judge Mbutfo Mamba and Judge Jacobus Annandale) to one (Judge Nkululeko Hlophe), at the time sitting as a full bench in terms of Section 151 (2) of the Constitution, declared Sections 3(1), 4(a), (e) and 5 of the Sedition and Subversive Activities Act 46 of 1938 to be inconsistent with Sections 23, 24 and 25 of the Constitution and therefore null and void.
The High Court further declared paragraphs (1) of Section 2, paragraph (2)(f) (i)(ii)(iii),(j); paragraph (b), Section (11) (1)(a)and(b) and 11(2);Sections 28 and 29(4) of the Suppression of Terrorism No.3 of 2008 to be inconsistent with the constitutional provisions relating to freedom of speech and association as provided under Sections 24 and 25 of the Constitution, and therefore invalid to the extent of such inconsistency with the Constitution.
The appeal was beset with postponements, largely due to the non-availability of judges who had not dealt with the matter one way or the other. It was after six years when it was finally heard on June 10, 2022.
On this date, the Supreme Court heard preliminary points of law and reserved its judgment. The judgment issued yesterday means that the court will proceed to hear the merits.
In terms of the rules, the record of proceedings ought to have been filed between October 11, 2016 and December 11, 2016, but none was filed.
The record was not filed until six months later, March 17, 2017.
Government instructed South African Advocate Gregory Harpur, who was assisted by Senior Crown Counsel Vikinduku Manana.
Condonation
When the matter was heard, Harpur said the application for condonation for the late delivery of the record of proceedings, the application for condonation for government’s non-appearance in court on October 23, 2017 and the counter-application for an order declaring that the appeal had lapsed were dealt with in favour of government.
He said Judge Phesheya Dlamini, sitting as a single judge, granted condonation for government’s non-appearance on October 23, 2017, and the matter was removed from the roll. Judge Dlamini ordered that the appeal be reinstated and referred the file to the registrar for allocation of hearing dates.
This, according to Harpur, meant that government had been condoned for late filing of the court record.
The advocate also made submissions on the issue of supplementing the record and amendment of the notice of appeal and supplementary heads of argument.
Harpur informed the court that the supplementary affidavits had been omitted from the record as a result of a genuine mistake on the part of government.
He said his instructing attorney did not notice that these aspects had not been included in the court file and the registrar had similarly mistakenly overlooked that the documents were accepted by the court into the file. The advocate said it should be considered a ground of appeal that the court erred in not having regard to the supplementary affidavits.
Lucky Howe, who represents, Human Lawyer Thulani Maseko, was the second to the address the court. He pointed out that the AG had stated that the matter was of national importance; however, it took the AGs Office six months to file a record of proceedings yet recognised that the matter was of national importance.
He submitted that the AG did not apply for condonation for the late delivery of the record of proceedings. According to Howe, this was because government knew that it did not meet the threshold.
Advocate Jonathan Berger, who represents some of the respondents, said the AG’s Office did as it pleased.
He accused the AG of making changes in the matter without leave of court.
Amendment
Berger said the supplementary notice contemplated a different case from the September 2016 appeal. He said the amendment was made without leave of court.
“They should have sought leave of court. The AG’s Office shows that it does as it pleases. When it has been shown that they don’t comply with the rules, the AG’s Office comes up with a condonation application. The court has to look into the delinquent behaviour of the AG’s Office,” said the advocate.
Some of the respondents, who comprised of people who were accused of contravening the Suppression of Terrorism Act and the Sedition and Subversive Activities Act, were arrested about 10 years ago. Their cases have been hanging over their heads ever since.