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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.


“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.

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