Times Of Swaziland: REMEDY, IF ANY, LIES ELSEWHERE - JUDGE MUMCY

REMEDY, IF ANY, LIES ELSEWHERE - JUDGE MUMCY
================================================================================
BY MBONGISENI NDZIMANDZE AND KWANELE DLAMINI on 15/09/2021 08:54:00


MBABANE – The remedy, if any, of MPs Mduduzi ‘Bacede’ Mabuza and Mthandeni
Dube does not lie with the High Court but elsewhere.
This was said by Judge Mumcy Dlamini yesterday when she dismissed the two
incarcerated Members of Parliament’s (MPs) second bail application. Last week,
Judge Dlamini asked the parties to address her on the point of functus officio
(of no further authority) which she had raised mero motu (of her own volition).
Judge Dlamini had postponed the matter to yesterday to issue a ruling on whether
the court was functus officio after the parties had made their submissions. She
found that the High Court was functus officio and proceeded to dismiss the
MPs’  bail application. Judge Dlamini issued no order as to costs. She pointed
out that the MPs’ remedy lay elsewhere but not at the High Court. In about
five seconds, Judge Dlamini was done reading the order and subsequently left the
courtroom.
It was not expected that she would make a ruling on the bail application as she
had stated last week that she would rule on whether the court was functus
officio or not. In her judgment, Judge Dlamini stated that she was not the one
who was functus officio but it was the High Court. In their initial application,
the judge found that the MPs made a bare denial of the allegations raised by the
Crown and the denial translated into no evidence to be put on the scales of
justice against the evidence of the respondent that was put on the same scales.
According to the court, from the second bail application, Mabuza and Dube were
not saying that they were filing the fresh bail application on grounds of such
procedural aspects or that there were no findings by the court in the first bail
application.
Contending
“They are contending that there are new facts. In other words, applicants
(MPs) appreciated that the court accepted that the interest of justice did not
favour their release based on the tilting of the said scales,” said the judge.
Judge Dlamini asked: “Is it open for this court to determine if there are new
facts on the applicants’ fresh bail application, therefore?” The judge said
she asked this question because that was the impression created by the MPs’
representative, Advocate Jacobus Lodewicus Coetzee Jansen Van Vuuren, from South
Africa. Judge Dlamini cited a case of former Minister of Justice and
Constitutional Affairs Sibusiso Shongwe, who was arrested for alleged
corruption-related offences. His bail application was dismissed by Judge
Qinisile Mabuza and he filed another application. The second application was
dismissed by Judge Nkululeko Hlophe. He was, however, released by the Supreme
Court.
In Shongwe’s matter, the Supreme Court said; “Where a court hearing a bail
application has made specific finding refusing bail, an accused person is
precluded from lodging a subsequent bail application before the same court on
the pretext that new facts exist. The court is functus officio and has no
jurisdiction to entertain the matter.” Judge Dlamini said Section 96 (18) and
(19) allowed an accused person, if he or she had been granted bail, to lodge a
subsequent application before a court of the same jurisdiction with a view to
amend the amount of bail or supplement any of the bail conditions. The judge 
said in the MPs’ matter, there was no need for her to make a determination
whether there were new grounds for the present bail application. “I find that
this court is functus officio. Applicant’s remedy, if any, lies not with this
court but elsewhere in this regard,” said the judge.