TWO MPS’ RELEASE WILL ENDANGER PUBLIC SAFETY - CROWN

MBABANE - The Crown says releasing Hosea MP Mduduzi Bacede Mabuza and his Ngwempisi counterpart, MP Mthandeni Dube, will endanger the safety of the public.

According to the principal investigator of the matter, Senior Superintendent Clement Sihlongonyane, some public officials have already started receiving threats as a result of the duo’s arrest. On Monday, the two MPs moved an urgent application for bail, which is, however, being met with resistance from the Crown.  In their application, they both denied committing the offences. They are alleged to have incited the public to revolt against a constitutionally established government. As such, they were charged under the Suppression of Terrorism Act of 2008. In the second charge, Mabuza is alleged to have contravened the COVID-19 regulations in June. In his opposing affidavit, Sihlongonyane submitted that the claim by the accused persons that they were innocent of the charges against them was neither here nor there. He told the court that the State would lead evidence to prove commission of the offences they were charged with.

Release

Sihlongonyane told the court that the release of the pair would endanger the safety of the public. “This is because some public officials have already received threats as a result of their arrest. May I further state that the release of the applicants will jeopardise public confidence in the criminal justice system. “The offences committed by the applicants resulted in the loss of life, bodily injuries and destruction of private and public properties. The society expects protection from the courts,” the principal investigator said. He also submitted that the accused persons were a flight risk. According to Sihlongonyane, Mabuza and Dube would allegedly interfere with Crown evidence, jeopardising public peace and stability. He said, therefore, it would not be in the interest of justice to grant the MPs bail. He pointed out that when Mabuza allegedly committed the offences, he was out on bail in another matter and that, according to Sihlongonyane, demonstrated that he had a propensity to commit offences.

Innocent

Sihlongonyane further submitted that it was neither here nor there that Mabuza and Dube told the court that they were innocent of the charges because the Crown would lead evidence to prove that they committed the offences. “These offences do not emanate from the mandate given to them by the people under their constituencies. The applicants do not state where and when they were given the said mandate by the people from their constituencies. In any event, in law, people’s mandate is not a defence against a criminal charge,” contended Sihlongonyane. The principal investigator informed the court that he had been advised that the immunities of Parliament fell into two broad categories. He said the first was the immunity of Members of Parliament and other people taking part in proceedings of Parliament, usually referred to as freedom of speech.  This immunity, according to the Crown, means that members and persons participating in proceedings of Parliament cannot be sued or impeached in the courts for anything they may say there.  Sihlongonyane said the second was the immunity attached to proceedings in Parliament, including decisions of the House and public debates and proceedings. “Wherefore I state that when the applicants committed these offences, they were not acting under parliamentary immunities, as such cannot claim protection from arrest as a result of their utterances to the effect that the public must revolt against the constitutionally established Government of Eswatini.

Utterances

“The basis of the charges against the applicants emanated from utterances and conduct made outside Parliament or parliamentary proceedings,” he added. Regarding MP Mabuza, Sihlongonyane submitted that he was not aware how many businesses the former had. He said even if Mabuza had businesses, that would not outweigh the fact that he was allegedly a flight risk and would interfere with Crown witnesses. The investigator told the court that Mabuza would know the names and identities of the Crown witnesses during the course of the trial. He said some of the witnesses were from Hosea. “Further to that, the applicant (Mabuza) is a renowned businessperson and, therefore, has financial means to interfere with the said witnesses. On the other hand, once the applicant is released on bail, the Crown will not have the necessary resources or mechanism to monitor or police against the said likely interference.” Sihlongonyane said both applicants, regardless that they had businesses, family and emotional ties in the country, nothing could prevent them from selling their businesses and assets and relocate together with their families to another country. He argued that with their financial resources, the two could easily re-establish a new life elsewhere, possibly in the Republic of South Africa, especially where Mabuza has a biological brother in Pretoria.

Extradition

Sihlongonyane also submitted that even though Eswatini had an extradition agreement with the Republic of South Africa, ‘experience has taught us that it is very difficult to extradite fugitives from the Republic of South Africa’. “The success rate of extradition applications sent to the Republic of South Africa has been minimal. There are other countries which Eswatini does not have extradition treaties or agreements with, which the applicants can flee to.” He said revealing the names of witnesses at this stage would be a high risk. According to Sihlongonyane, Mabuza was capable of looking for the concealed witnesses, due to the prevailing situation in the country, if granted bail and would allegedly mobilise many people to join his ‘unlawful’ activities of revolting against government. The investigator also told the court that Mabuza allegedly took the warrant of arrest and locked himself in his car for one and half hours and in no time the warrant went viral on social media, ‘instigating his followers’. “Therefore, the applicant is misleading the court that he is a law abiding citizen.” The bail application will be heard today at 2:30pm by Judge Mumcy Dlamini. Mabuza and Dube are represented by Advocate Mduduzi ‘Tsotsi’ Mabila, who has been instructed by Sifiso Jele of S.M. Jele Attorneys.

The charges

First count

The accused persons (Bacede and Mthandeni) are guilty of contravening the Suppression of Terrorism Act. In that during the month of June 2021, in the Hhohho, Manzini, Lubombo and Shiselweni regions, the said accused persons each or all of them acting in furtherance of a common purpose with Mduduzi ‘Magawugawu’ Simelane (who is a fugitive of justice) did unlawfully commit a terrorist act by inciting the people of Eswatini to revolt against the constitutionally established Government of Eswatini.  Whereas, as a consequence of the incitement made by the said accused persons, there were riots in all the regions of the country. These riots caused loss of life, bodily injuries and destruction of private and public properties.

Second count:

Accused NO.1 (Bacede) alleged contravened Regulation 4 of the Disaster Management (COVID-19) Regulations 2020 under the Disaster Management Act 01/2006: In that upon or about June 5, 2021 at Hosea in the Shiselweni Region, the said accused failed to keep a register as required by the reglations for any gathering and sanitise participants in a gathering he had convened and thereby committed the said offence.

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