Home | News | BACEDE, MTHANDENI APPEAL, RAISE SIX GROUNDS

BACEDE, MTHANDENI APPEAL, RAISE SIX GROUNDS

16/09/2021 08:57:00 BY MBONGISENI NDZIMANDZE

Font size:

MBABANE – They will not go down without a fight!

After their second bail application was dismissed by Judge Mumcy Dlamini on Tuesday, incarcerated Members of Parliament (MPs) Mduduzi Bacede Mabuza of Hosea and MP Mthandeni Dube of Ngwempisi have approached the highest court in the land, which is the Supreme Court. In their notice of appeal, they raised six grounds why they believed Judge Dlamini misdirected herself when she came to the conclusion that the High Court was functus officio and, therefore, precluded from hearing their second bail application. Functus officio means the principle in terms of which decisions of a judicial officer are deemed to be final and binding once they are made. They cannot, once made, be revoked by the same judicial officer. The appeal was filed by their lawyer, Thulani Maseko yesterday.

In her judgment, Judge Dlamini said: “I find that this court is functus officio. Applicants’ remedy, if any, lies with not this court, but elsewhere in this regard.” The appellants averred that the court a quo (High Court) misdirected itself in finding that it was functus officio. MP Mabuza and Dube are also of the view that Judge Dlamini erred in fact and in law in finding that there was no need to make consideration whether there were new grounds. They contended that the decision of the judge to dismiss their second bail application was bad in law. According to the appellants (Mabuza and Dube), Judge Dlamini in fact did consider the new facts filed in the second bail application. It was further their contention that the High Court misdirected itself in finding that their counsel argued that the court did not make a factual finding against them.

“The High Court erred in finding that it was precluded from hearing an application on new facts with reference to the cases of Shongwe vs Rex and Moyo vs Rex,” reads part of the notice of appeal. The date of the hearing of the appeal is still not known and the Crown is opposing same and it is still to file its papers outlining its reasons for opposing. Mabuza and Dube’s trial is expected to resume on October 11, 2021. The two MPs had filed another bail application after their initial one was dismissed by the same judge on August 6, 2021. In the second application, they cited new facts and circumstances which they said had arisen. Last week, Judge Dlamini asked the parties to address her on the point of functus officio which she had raised mero motu (of her own volition).

Doctrine

The doctrine of functus officio prevents the reopening of a matter before the same court, tribunal or other statutory actor that rendered the final decision. On Tuesday, the judge found that the High Court was functus officio and proceeded to dismiss the MPs’ bail application. 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 to no evidence to be put on the scales of justice against the evidence of the respondent that was put on the same scales. Judge Dlamini said nothing controverted the evidence adduced by the Crown ‘which was put on the scales by this court’. She said the upshot of it was that the evidence by the Crown that they were a flight risk, posed a danger to national security, the public relied on the courts to protect it and their properties were accepted as likely or probable and not as a fact against the MPs because it stood unchallenged in law.

Fresh

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 interests 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 corruption-related offences. His bail application was dismissed by Principal 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 findings 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.”

The Supreme Court in Shongwe’s case proceeded to say, the new facts or change of circumstances should be invoked in circumstances where bail had been granted and the application was only intended to vary the bail conditions, ‘otherwise the subsequent bail application would offend the general principle of our law that once a court has pronounced a final order of judgment, it becomes functus officio and cannot, therefore, alter, correct or supplement its judgment’. The judgment was written by Judge Bheki Maphalala, who is now the Chief Justice (CJ). The court in Shongwe’s matter concluded that, in light of specific findings made by Judge Mabuza refusing the accused bail; it was not open to him (Shongwe) to lodge a fresh bail application before the same court. 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.

In the Shongwe matter, Judge Dlamini said the Supreme Court, as per Judge Maphalala, held that: “Where a court makes a specific finding refusing bail, it is not open to the same court in a subsequent bail application to review its own decision under the guise of new circumstances. The court becomes functus officio and the matter should be taken up on appeal. It is only the Appeals Court which could deal with the specific finding of the court a quo (that heard the matter).” Judge Dlamini 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. The Crown was represented by Principal Crown Counsel Macebo Nxumalo. The MPs were represented by Human Rights Lawyer Thulani Maseko, who instructed Advocate Jacobus Lodewicus Coetzee Jansen Van Vuuren, from South Africa.