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HOW JUDGE MUMCY DEALT WITH OTHER BAIL APPLICATIONS

04/08/2021 08:42:00 BY KWANELE DLAMINI

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MBABANE – Some supporters of MP Mduduzi Bacede Mabuza and MP Mthandeni Dube have been asking themselves what kind of judgment Judge Mumcy Dlamini is likely to issue on the pair’s bail application.

Judge Dlamini reserved judgment in the application for bail filed by the two MPs last Monday which was argued last Thursday. The judge said she would consider the submissions made by the accused persons and the Crown and issue a judgment on a date to be determined by the registrar of the High Court. Some of the MPs’ supporters fear that Judge Dlamini might not grant the two bail, while others think she will. Last Thursday, before the bail application was argued, others were already asking questions regarding whether Judge Dlamini would release the two MPs.

Companion

“Nawucabanga batawphuma?” asked a supporter of the MPs, wanting to know if his companion thought the judge would grant the bail application. This was because some of the people who were in court and others who did not attend the proceedings, were of the view that the judge would issue a ruling soon after the submissions. However, the judge reserved judgment. Some even asked reporters if they thought the two would be released. They were informed that judges consider issues of law before issuing judgments. Judge Dlamini has been described by many as one not to be intimidated in that in 2014, she granted bail to seven People’s United Democratic Movement (PUDEMO) members, who were also charged for allegedly contravening the Suppression of Terrorism Act 2008.

Charged

Mabuza and Dube have been charged with same, however, Mabuza alone faces an extra charge of breaching COVID-19 regulations. The seven PUDEMO members were arrested for being found in possession of the banned organisation’s T-shirts. The arrested members were current PUDEMO President Mlungisi Makhanya, who was the secretary general at the time, Bongani Gama, Brian Ntshangase, Mangaliso Khumalo, Bafana Magongo, Ntobeko Maseko and Siza Tsabedze. Judge Dlamini fixed their bail amount at E15 000 each. The judge ordered each of the accused to pay E5 000 cash and provide surety for the balance. The septet was arrested on April 24, 2014 near the High Court, where the trial of The Nation Magazine Editor Bheki Makhubu and Human Rights Lawyer Thulani Maseko was ongoing. They were charged with four counts which included contravening the Suppression of Terrorism Act No.3 of 2008 and Sedition and Subversive Activities Act No.3 of 2008. There was complete silence in court when Judge Dlamini read the last part of the 16-page judgment.

In her judgment, the judge stated that the Crown strenuously argued that the charges faced by the accused were of a serious nature and she agreed with it in that regard. “Generally speaking, all criminal charges are serious in their nature although one must add that it is not from mere reading of a charge that one may infer its seriousness. One has to go further and read the act, commission or omission said to have been committed,” she stated. Judge Dlamini stated that the respondent (Crown) also alluded to other grounds such as that the applicants (seven accused) might commit the same offence if released and that they might interfere with Crown witnesses. She said it was not an issue that all the applicants had families in the country. This included Makhanya, who, although was said to have both his businesses in South Africa and came to the country to be with his wife and children almost every weekend. “The factor that all the applicants have their families or emotional ties, as we often say, on its own fortifies the ground that the applicants are rooted in the country and this mitigates the likelihood of evading trial,” Judge Dlamini stated.

Penalty

She further said another factor that required attention was the ability of the applicants to flee. She said against this ground was the Crown’s case, the stringent penalty or seriousness of the charge. “A perusal of the four counts reflects that mischief alleged against the applicants is that they unlawfully solicited or gave support to a terrorist entity (PUDEMO) by wearing T- shirts with inscription ‘PUDEMO’. Nothing turns on enchanting of terrorist slogans because there are no specific words mentioned in the indictment indicating same,” she said. The judge said although the applicants faced four counts, two under the Suppression of Terrorism Act and two under the Subversive Activities Act, only one act was reflected on all the counts and that was of wearing T- shirts and berets belonging to the proscribed entity.

Judge Dlamini further stated that the Crown counsel, during the hearing, submitted that the applicants were charged with the offence of violence. She said when Crown counsel was pressed by the court to demonstrate same from the charges; he informed the court that he was withdrawing such a submission. The judge said on this, nothing much was left to be said on the seriousness of the charge or penalty. Judge Dlamini granted them bail and ordered all the accused to submit all their travelling documents or passports to the head of investigation team and not apply for any.

Challenged

The accused challenged the constitutionality of certain sections of the Suppression of Terrorism Act and the High Court ruled in their favour. Government filed an appeal which is still pending in the Supreme Court due to the fact that most of the judges dealt with the matter one way or the other, and they are conflicted to deal with the appeal. In another matter, in April 2014, Judge Dlamini ordered the release of The Nation Editor Bheki Makhubu and Human Rights Lawyer Thulani Maseko from custody after they were arrested for contempt of court following articles in the magazine in March 2014. The two, who were first jailed in March 18, had written articles that criticised the country’s Judiciary, which was headed by the now deceased Michael Ramodibedi.
Judge Mumcy Dlamini nullified their arrest warrants and ordered that Maseko and Makhubu be released. Former High Court Judge Mpendulo Simelane issued new arrest warrants in that Makhubu and Maseko had supposedly failed to appear before him on April 1, 2014 and they were re-arrested. They were eventually released by the Supreme Court after spending 15 months behind bars. In November last year, Judge Dlamini said she would not be releasing accused persons who had been arrested for robbery during the festive period.

Robbery

As a result, four men, who had been accused of robbery, had to spend Christmas behind bars after the judge granted them bail but ordered that they should be released the following year. Judge Dlamini said they would be released on January 31, 2021. She said she had forgotten that it was the festive season - season for robberies. “Asenihlale bantfu batokhona kudla Khisimusi kahle (you should stay in custody while people celebrate Christmas in peace). Kute umuntfu lengitamkhipha nyalo (I won’t release anyone),” she told the accused persons. The accused persons were Saga Hayden Rosa, Ntokozo Matsenjwa, Nathi Dlamini and Mpendulo Dlamini. They had been charged with robbery.

Forgotten

After the matter had been called, Judge Dlamini said: “This group is for robberies. Besengikhohliwe kutsi ngu December,” meaning that she had forgotten that it was the festive season during that period. “It is time for robberies now that it’s almost December. All along I have been dealing with rape and SODV cases, but now it is robberies. People want to go on holiday and celebrate Christmas in peace. Your bail is granted but it will be effected on January 31, 2021,” the judge said. One of the accused tried to explain that he would behave himself once released but the judge heard none of it. Judge Dlamini told him that a lot of people had lost their property due to robbery and some of the stolen items were being taken out of the country.