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MPS ALL SMILES AFTER FIRST VICTORY

30/12/2021 08:50:00 BY MBONGISENI NDZIMANDZE

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MBABANE - Incarcerated Members of Parliament (MPs) Mduduzi Bacede Mabuza and Mthandeni Dube yesterday left Court C of the High Court all smiles after they scored their first victory ever since they were arrested.

Since they were arrested on July 25, 2021, they have not been successful in any of their applications in court. In dismissing their initial bail application, Judge Mumcy Dlamini said they made a bare denial on the allegations that were levelled against them by the Crown. They later filed a second bail application, which Judge Dlamini dismissed on the basis that the High Court was now precluded from hearing same. They then filed an urgent bail appeal in the Supreme Court, which was not enrolled for three months, resulting in them filing an urgent application at the High Court, seeking an order compelling the registrar of the Supreme Court and the chief justice (CJ) to enrol their urgent bail appeal.

Smile

Yesterday, they had a reason to smile as Judge Doris Tshabalala ordered the registrar of the Supreme Court to ensure that their urgent bail appeal was enrolled in the earliest sitting of the Supreme Court session next year. After the court had issued the judgment, Mabuza was overheard saying ‘sekucala kubonakala embili’ (it seems there is now light at the end of the tunnel). The Supreme Court is currently in recess and its first session next year is expected to resume mid February. The order by Judge Tshabalala comes after the duo moved an urgent application where they were seeking an order compelling the registrar of the Supreme Court to enrol their urgent bail appeal.

Judge Tshabalala first dismissed the points of law that were raised by the registrar, where she had contended that the Supreme Court was autonomous from any other court and, therefore, the High Court had no power to direct the enrolment and hearing of matters before the Supreme Court. It was after the court had dismissed the points of law that the respondents’ (registrar of the Supreme Court and CJ) lawyer informed the court that they would not be filing any answering affidavit in the matter. “The respondents will not be filing any answering affidavit in the matter on the merits. It is now for the court to determine whether the applicants (Mabuza and Dube) have made out a case for the orders they seek,” submitted the respondents’ Lawyer Emmanuel Shabangu, who was standing in for Senior Lawyer Zweli Jele.

After Shabangu’s submission, Ben J Simelane, who is representing the two MPs, then implored the court to grant them the relief sought in their application, which was to compel the registrar to enrol the applicants’ (Mabuza and Dube) bail appeal. Judge Tshabalala said in the aftermath of dismissal of the points of law and there being no answering affidavit, the applicants’ application remained unopposed on the merits. “In the circumstances, the court expresses satisfaction that the applicants’ affidavit disclosed sufficient evidence entitling them to the relief sought. The application succeeds and the writ of mandamus issued against the respondents in terms of prayers sought,” said Judge Tshabalala.

She then ordered the registrar of the Supreme Court to ensure that the applicants’ bail appeal was enrolled in the earliest sitting of the Supreme Court session of the year 2022. Mandamus, according to Black’s Law Dictionary, is a writ issued by the court to compel performance of a particular act by a lower court or governmental officer or body, to correct a prior action of failure to act.

Acknowledgment

In her 16-page judgment, which she read in 35 minutes, Judge Tshabalala said from the acknowledgment by both sides in the matter that the nature of the relief sought was mandamus, she thought it was proper to approach it from that perspective. She highlighted that a strong argument was made on behalf of the respondents that the High Court did not have jurisdiction to hear and determine the matter because it was pending before the Supreme Court. “It is pertinent to inquire what is means that the matter is pending before the Supreme Court. It is understood that the mere fact of a matter pending before the Supreme Court may not per se be an automatic bar to High Court jurisdiction, it depends on the set of facts in each case,” said the judge.

The judge said the stage of the matter was relevant, that was whether proceedings had commenced at the Apex Court (highest judicial court in a country), whether the matter is partly heard or judgment had been issued. She further pointed out that, also the relation of the relief sought in the matter launched before the High Court to the matter pending in the Supreme Court should be considered. Judge Tshabalala said of grave importance was the nature of the relief sought before the High Court, whether assuming jurisdiction was likely to undermine the Supreme Court, in the sense that it would infringe judicial hierarchy and disturb the rule of law.

The judge said the court was called upon and must consider these factors in coming to a decision in the applicants’ matter. After both parties acknowledged that the nature of the relief sought was mandamus, the judge then proposed to proceed with it by way of inquiry into whether the court had jurisdiction to grant the order of mandamus in this case. The court further pointed out that mandamus or mandatory interdict as it was also commonly known, was a discretionary remedy available at common law to provide means of enforcing performance of public duties by public authorities of all kinds. Judge Tshabalala then proceeded to consider representation and legal arguments advanced for the respondents against jurisdiction and those advanced by the applicants in favour thereof.

Thrust

“The thrust of the case of the respondents as I understand it is that assuming jurisdiction in this matter is wrong on multiple grounds, the foremost being that it would go against judicial hierarchy in the country, that is established by the Constitution and Court of Appeal Act, the doctrine of judicial precedent entailing that the lower courts defer to the superior court.” She said it was submitted that the Supreme Court was autonomous and clothed with the power to deal with the application within its procedures and that the application concerned a procedural issue of enrolment and as such could be heard by a single judge of the Supreme Court.

The MPs were represented by Ben J Simelane, while Zweli Jele of Robinson Bertram appeared for the registrar of the Supreme Court and the chief justice. Senior Crown Counsel Macebo Nxumalo and Absalom Makhanya represented the officer of the Director of Public Prosecutions (DPP) in the matter. When sought for comment on the ruling, the MPs’ lawyer, Simelane said he was not in a position to comment, save to say he was content that his clients had been heard by the court.