‘MENTAL EVALUATION ORDER EMBARRASSING’

MBABANE – “The application to send me for mental evaluation is frivolous, vexatious and is calculated to embarrass me.”

These were the submissions of Goodwill Sibiya, the member of the proscribed People’s United Democratic Movement (PUDEMO), who stands accused of challenging the country’s authorities.
Sibiya is opposing the application in which the Crown had applied that he should be taken for mental evaluation.

Falsehoods

He is alleged to have unlawfully attested to an affidavit containing falsehoods with the intention to bring into hatred or contempt or to excite disaffection against His Majesty the King and thereby contravened the Sedition and Subversive Activities Act.
The application to take the accused for mental evaluation was made by Principal Crown Counsel Brian Magagula in terms of Section 163 of the Criminal Procedure and Evidence Act 67/2017.

Section 163 of the Act provides that: “If in the course of a trial or preparatory examination the judicial officer has reason to believe that the accused is of unsound mind and consequently incapable of making his defence.
In his opposing affidavit, averred that the application filed by the Crown was fatally defective.

“I am advised and verily believe that there are past instances where certain individuals made utterances about the King of Eswatini similar to those which I am accused of making.

“They were not subjected to the treatment that this application (application to take him for mental evaluation) seeks to do,” he argued.
He contended that given these past experiences, he was advised that the application to take him for mental evaluation was not made in good faith, but was intended to embarrass him, harass him and destroy his reputation.

Sibiya further submitted that the Crown should have disputed and contested the allegations he made in his affidavit in and before the court rather than opting to arrest him.
“I do not know what allegations are of a serious nature as to demean the name of His Majesty.

“If the allegations are said to be untrue, the Crown ought to have denied them and placed their version thereto on record,” averred the accused.
The PUDEMO member averred that the truthfulness or otherwise of the allegations which was contained in the affidavit could be tested before the court where the application was made, not a criminal court. 

Abuse

He contended that the indictment and the application by the Crown to take him for mental evaluation constituted an abuse of court process.
According to the indictment, Sibiya faces two charges that relate to contravening the Suppression of Terrorism Act of 2008 and contravening the Sedition and Subversive Activities Act 46 of 1938.

In the first count, he is alleged to have, on or about January 21, 2019, at or near Nhlangano in the Shiselweni region, unlawfully professes to be a member of terrorist groups namely PUDEMO, the Communist Party of Swaziland and the Economic Freedom Guerillas.
By doing so he is alleged to have contravened the Suppression of Terrorism Act.

On the second count, Sibiya is alleged to have unlawfully attested to an affidavit containing falsehoods with the intention to bring into hatred or contempt or to excite disaffection against the person of His Majesty the King and thereby contravened the Sedition and Subversive Activities Act.

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