A REASONABLE MAN MIGHT CONVICT MPS - JUDGE

MBABANE – A reasonable man might convict the incarcerated MPs.

This is according to Judge Mumcy Dlamini, who dismissed the acquittal and discharge application yesterday, which had been filed by Hosea and Ngwempisi Members of Parliament (MPs), Mduduzi Bacede Mabuza and Mthandeni Dube. The MPs filed the application after the Crown closed its case after leading 62 witnesses. The application was moved in terms of Section 174 (4) of the Criminal Procedure and Evidence Act, 1938. The section provides that if, at the close of the case for the prosecution, the court considers that there is no evidence that the accused committed the offence charged with or any other offence of which he might be convicted thereon, it may acquit and discharge him.

Dismissing

When dismissing the MPs’ application, Judge Dlamini said: “After considering the submissions by both parties, it is my considered view that the bonus paterfamilias (reasonable man) might, and not shall, convict. In the circumstances, the accused persons have a case to answer.” Judge Dlamini stated that it was settled under the application for a discharge at the close of the Crown’s case that the question of the credibility of witnesses did not form part of the enquiry in as much as no court of law would accept, at any stage, evidence of a witness that was glaringly farfetched or senseless.

Application

The judge said that was because the application for discharge at the close of the Crown’s case was a question of law and not of fact, so that the court would not ask whether any of the prosecution witnesses was credible or not. “Further, the contention that an act was not unlawful is another aspect that is regarded under the present application. The enquiry at this stage is not to look for evidence beyond reasonable doubt. It is to examine the evidence of witnesses for a prima facie case. It is to ascertain whether a reasonable man might convict on the evidence adduced,” said the judge.

Judge Dlamini further asked, “Who is the reasonable man?” She said the reasonable man was the man on the street. She described him as a right thinking member of society (bonus paterfamilias). “He is neither a super critical-thinking or analyst nor a man who possesses the qualities of a Hebrew prophet, so to speak. He is a man of average intelligence and learning.
“He is not faint-hearted and easily in trepidation. He is the embodiment of all the qualities which are demanded in a good citizen, a device to measure the conduct in question by reference to community valuations,” she said. Judge Dlamini questioned what might the reasonable man to with regard to a conviction in light of the evidence presented before court. “Might he convict? It’s with certainty that the answer does not lie on the large number of witnesses paraded or exhibits tendered. There are a number of variables to be considered,” added the judge.

The judge also said, after considering the submissions by the defence and prosecution, it was the considered view of the court that a reasonable man might convict in this case. The court then dismissed the MPs application. When MP Mabuza and MP Dube return to court on August 9, 2022, they will proceed to present their case. The Crown was opposed to the MPs’ application to be acquitted and discharged. In the first count, the MPs, as well as former Siphofaneni MP Mduduzi ‘Gawzela’ Simelane, who is at large, allegedly Contravening Section 5(1) of the Suppression of Terrorism Act 2008, read with Section 2(a) to (d) as amended.

It is alleged that the accused, acting in concert with Simelane, committed a terrorist act by committing an act, an attempted act or threat of action to wit, encouraging people in public statements to disobey the lawful banning by the government of the delivery of petitions and/or to reject the appointment of the acting prime minister and to thereby encourage the civil disobedience which had certain alleged intentions or consequences.

Accused

As a consequence of the alleged actions of the accused, there were riots in all the regions in the country.  These riots caused loss of life, bodily injuries to people and destruction of private and public properties. In the second and third charge, murder, it is alleged that MP Mabuza and MP Dube committed murder in that on June 29, 2021, they did intentionally killed two people at Nkwalini, Mbabane. In the last charge, MP Mabuza is accused of contravening Regulation 4 of the Disaster Management Coronavirus Regulations of 2020.

Contravened

It is alleged that he contravened Regulation 4 of the Disaster Management Coronavirus Regulations of 2020 in that, on June 5, 2021 and at Hosea in the Shiselweni Region, MP Mabuza failed to keep a register as required by the Regulations for any gathering and sanitise participants in the gathering he had convened, and thereby committed the said offence. The MPs are represented by Advocate Jacobus Van Vuuren, who is assisted by Ben J. Simelane and Mhlengi Mabuza. The Crown is represented by Advocate Gareth Leppan. He is assisted by Principal Crown Counsel Macebo Nxumalo Thabo Dlamini and Absalom Makhanya.

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