MBABANE – Former Hosea and Ngwempisi MPs Mduduzi Bacede Mabuza and Mthandeni Dube are likely to stay in custody until they are sentenced.
This is because their appeal against their application for bail, which was dismissed by Judge Mumcy Dlamini in December 2022, has not been enrolled in the second session roll of the Supreme Court. The court roll was issued on July 19, 2023. According to the court roll, one of the matters to be heard in the second session, which begins on Monday, is the application by government to reinstate its 2018 appeal against the High Court order that allows losers in the general elections to lobby for Senate seats. The incarcerated former Members of Parliament (MPs) are currently awaiting sentencing, after Judge Dlamini found them guilty of inciting members of the public to riot against government and murder, among other charges.
They filed a notice of appeal in relation to the judgment that was issued by Judge Dlamini on December 15, 2022, dismissing their third application for bail. The former MPs’ three bail applications were heard by Judge Dlamini, who also presided over their trial. Mabuza and Dube, along with former Siphofaneni MP Mduduzi ‘Gawuzela’ Simelane, who is still at large, were accused of inciting members of the public to riot against the Government of Eswatini in 2021, during the political unrest, which resulted in loss of life and destruction of public and private property.
Judge Dlamini dismissed their 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.
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.
Dismissed
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 former MPs’ amended notice of appeal was struck off the roll and it is not to be pursued without leave of court. They 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.
In their notice of appeal, Mabuza and 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. 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.
Erred
Judge Dlamini, according to Mabuza and Dube, 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 means 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). In their third application, which they argued was a fresh application based on new circumstance, the pair 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 former 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 that Mabuza and Dube, had already given evidence and, therefore, they could not be intimidated by them (convicts). 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 former 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 delivery of the petitions.
