Swaziland
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ACCUSED LAWYER WANTS ANOTHER JUDGE FOR CASE

MBABANE – He wants another judge for his case.

This is the lawyer who is accused of sexually violating his children, cousin and helper. He contends that the presiding Judge, Sabelo Masuku, is the son of Deputy Prime Minister (DPM) Themba Masuku. His contention is that, besides the judge being a son to the DPM, the latter made some statements, which he claimed influenced his arrest and subsequent prosecution.
On Tuesday, *Musa’s representative, Khumbulani Msibi, told the court that his client intended to file an application for the recusal of Judge Masuku.  Together with Crown Counsel Mncedisi Dlamini, Msibi approached Judge Masuku in chambers, where he moved the recusal application. The procedure is that the party who seeks the recusal of a judicial officer first makes the application in chambers.

Recuse

If the judicial officer refuses to recuse himself from the matter, the party seeking the recusal proceeds to file a formal application, stating their reasons to want the judicial officer to be removed. In chambers, the judge was informed that by virtue of the parent-and-child relationship between him (judge) and the DPM, an ordinary bystander watching from afar would not have confidence in the outcome of the trial.  The judge was also informed that in other words, justice would not manifest and undoubtedly be seen to be done. He said although his client did not have evidence of interference by the DPM in the trial, by virtue of their relationship, the judge may be unconsciously influenced to act on the DPM’s sentiments. The judge, on the other hand, said it was unfair because, as a politician, the DPM talked politics on any subject anytime, every day. He wondered if that meant that he had to recuse himself from every case the DPM made comments on.

When Msibi and Dlamini returned from seeing Judge Masuku in his chambers, Msibi applied that the trial should be deferred to another date. In the meantime, Msibi applied for leave to file a formal application for the recusal of Judge Masuku. The formal recusal application on notice of motion will be filed tomorrow. Msibi said they were entitled to be heard on the application. Dlamini told the court that the Crown was opposed to the application for the recusal of Judge Masuku. The Crown will advance its reasons for the opposition when responding to the application yet to be filed. Judge Masuku said there had been an indication (in chambers) that the accused’s attorney wanted to apply for his recusal. He stated that the normal course was that counsel approached the judge in chambers. The judge also said it was better that the application be done on notice of motion, since the Crown was opposed to it.

The Crown will file its answering papers next Wednesday.  Msibi said he would file a replying affidavit on May 2, 2023 and heads of argument, and other relevant documents, on May 5, 2023. The Crown will file its heads of arguments on May 10, 2023. Since the High Court will be on recess from April 28, 2023, the recusal application will be heard on the next session, on a date yet to be allocated. The accused lawyer, who was dressed in a black suit and a striped white shirt, was in leg irons when he arrived at the High Court.

Pictures

The lawyer almost lost it when some journalists took pictures of him as he told them to ask for permission to photograph him.  His sister also did not take kindly to the pictures of the accused being taken by journalists.   The attorney, who is detained at Zakhele Remand Centre, remained locked in discussion for some time with his legal representative after the court had adjourned indefinitely. His relatives, including the children he is accused of sexually violating and their mothers, were present in court. The helper who was also allegedly impregnated by the lawyer was also present with her child. Among them were other witnesses, one from the Republic of South Africa (SA), since the trial was supposed to start on Tuesday. Members of the People’s United Democratic Movement (PUDEMO) and Swaziland Youth Congress (SWAYOCO) were also present to observe the proceedings.

PUDEMO Deputy President Wandile Dludlu addressed members of his party and SWAYOCO after the court proceedings and informed them that they had previously delivered a petition to the Commission on Human Rights and Public Administration/Integrity, which was headed by Masuku (now judge). Dludlu said the then Masuku-led commission compiled a list of individuals who were killed during the political unrest and presented the list to the State. He alleged that the list was used by State agents to visit homesteads of the people who were killed and those who sustained permanent injuries. “You can see the kind of judge we are dealing with here. That is why you must take this matter very seriously,” said Dludlu. The accused attorney is still in custody after Judge Zonke Magagula dismissed his application for bail in October 2022.

The lawyer, whose identity will not be revealed to protect the complainants, subsequently filed an appeal against Judge Magagula’s decision to dismiss his application for bail. One of the reasons for dismissing his application was that he knew the complainants in the matter and was likely to interfere with them.

Removal

Meanwhile, the Department of Social Welfare was granted an order by the Mbabane Magistrates Court, for the removal of the lawyer’s four-year-old daughter and another from his homestead. The department had filed the application after making an assessment of the living conditions at the lawyer’s homestead and the court granted the order that the children be removed to a place of safety. The four-year-old child and the other, who was aged 17 years, were removed from the homestead of the lawyer, as per the order.  The involvement of the Department of Social Welfare officers in the matter, regarding another minor who was allegedly sexually violated by the lawyer, was at the instance of a prosecutor, who is related to the child.

One of the abused children told the police that she tried to commit suicide several times and another had been removed from the lawyer’s homestead to a safe house. This publication established that the lawyer allegedly took some of the children to SA for abortion procedures once they fell pregnant. It has been gathered also that one of the children allegedly fell pregnant about four times. One of his daughters, his niece and a helper, allegedly gave birth to the attorney’s children after failed abortion attempts at his instance.  The minors were allegedly sexually abused by the lawyer for years, beginning from when some of them were as young as 12 years old. One of the abused children now works for one security services and another is a studying in SA.

Investigation

An investigation by this publication established that members of the community where the attorney resides, who were aware of the alleged sexual abuse experienced by the children at the hands of their father, were enraged that nothing was seemingly being done to the lawyer. The community members were said to be contemplating taking the law into their own hands, due to the snail’s pace at which the matter was being addressed. One of the children, *Lungile, informed the police that ‘everyone at home was blaming me for having sexual intercourse with my father, as if it was my fault’. She told the police that she stayed with her father, stepsister, her brother and a helper in 2006, when she was doing Form I and was 12 years old. She said her stepmother stayed in another town, where she was employed and she would visit them on weekends. In the same year, according to Lungile, the lawyer began touching her inappropriately and sexually abusing her and her aunt, who was a year older than her. *Not real names to protect complainants