Home | News | CROWN WANTS TO REOPEN BACEDE, MTHANDENI CASE

CROWN WANTS TO REOPEN BACEDE, MTHANDENI CASE

05/12/2022 07:28:00 Mbongiseni Ndzimandze

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MBABANE - While everyone had anticipated that the case was towards completion, the prosecution has filed an application for leave to reopen its case against incarcerated MPs Mduduzi Bacede Mabuza and Mthandeni Dube.

The Crown had closed its case after having paraded about 64 witnesses in its quest to prove its case against the two Members of Parliament (MPs). In its application, the Crown submitted that it wanted to lead further evidence in respect of the events or procedures in Parliament of June 21, 2022. June 21, 2022, was reportedly the day when a formal resolution was reportedly adopted in Parliament, authorising petition delivery to be extended to June 26, 2021.

Alternatively, the Crown implored the court to exercise its discretion in terms of Section 99 of the Criminal Procedure and Evidence Act 1939, and call witnesses, whose identity according to the prosecution would only be revealed at the hearing due to security reasons. Section 99 states that the court may at any stage subpoena any person as a witness or examine any person in attendance though not subpoenaed as a witness, or may recall and re-examine.

Examine

It further stipulates that: “The court shall subpoena and examine or recall and re-examine any person if his evidence appears to it essential to the just decision of the case.” In motivating the application, Principal Crown Counsel Thabo Dlamini told the court that it became apparent only during the evidence of MP Mabuza that further evidence needed to be led by the Crown.

He brought it to the attention of the court that in his evidence, Mabuza averred that a formal resolution was adopted in Parliament on June 2021, authorising petition delivery to be extended to June 26, 2021. The legislator (Mabuza) in his evidence-in-chief further submitted that the deputy prime minister (DPM) was not at liberty to hand down a petition delivery banning order, which he did on June 24, 2021.

The DPM’s action, according to Mabuza, transgressed a lawful order of Parliament hence any banning order in contradiction thereof was illegal. In the application to reopen the case, the principal Crown counsel went on to tell the court that not only did this evidence emerge during Mabuza’s submissions, but there were at least two Crown witness to whom this version ought to had been put, namely; Kwaluseni MP Mabhanisi Dlamini and Deputy Government Spokesperson Thabile Mdluli.

Contributed

He contended that MP Dlamini was actually present in Parliament on June 21, 2021 and could have usefully contributed to the assertion by MP Mabuza that such a resolution had been adopted as a lawful order of Parliament.
“Similarly, Mdluli was the Crown witness who actually handed in the banning order, sans demur. This witness too, ought to have been afforded the opportunity to comment on this belated assertion by the respondents (incarcerated MPs).

“It is thus worth emphasising that the Member of Parliament Dlamini was thus ideally placed to have meaningfully commented on this version of the respondents and also on what transpired during the caucus,” said the principal Crown counsel. He told the court that it had emerged from the evidence of both incarcerated MPs that they deliberately did not put this version to the Crown witnesses. He alleged that they did that for the reasons that they provided, ‘which were respectfully disingenuous and hence it is submitted, they must now bear the consequences of that decision’.

According to Thabo, it had, as a result, become an irresolvable dispute of fact as to what happened in the caucus meeting on June 21, 2021. “... and further, how formal resolutions and/or lawful orders of Parliament are arrived at and at what stage does Parliament and the members of Parliament become bound thereby,” he added. It was also an issue, according to Thabo, as to whether this was a unanimous decision of the caucus and hence, so the argument goes, of Parliament. He said it was an issue as well whether this was a formal resolution or an informal agreement and ‘thus whether Parliament and the Deputy Prime Minister was bound thereby’.

Thabo informed the court that it had become common cause that where a member of Parliament acted contrary to a lawful order, for example, of Parliament, a body known as the Government Assurance Committee sat to investigate such behaviour. “It thus also needs to be established whether such committee was ever called upon to investigate this ‘illegal order’ handed down by the deputy prime minister. “In the absence of evidence clarifying these issues, this honourable court will be prejudiced in assessing the evidence.

“If this evidence is placed before this honourable court, the court will be better placed to assess the evidence and make a decision based on all the evidence,” Thabo submitted. He stated that it was imperative that this evidence be placed before the court as it would, among other things, assist in reducing the issues to be determined by the court.

Reopen

To justify the Crown seeking leave to reopen its case, said Thabo, there were generally two factors for consideration:
He said the first was whether there was a satisfactory explanation for the failure to lead this evidence at the appropriate time and the second being if the accused persons would be prejudiced by the reopening of the Crown case. Thabo submitted that on both grounds, these questions could be answered in favour of the Crown. He stated that there was indeed a satisfactory explanation for the failure to lead this evidence at the appropriate time.

“As the Crown only seeks to lead evidence relating specifically to the events of 21 June 2021, when both respondents (incarcerated MPs) were present and also as to the procedure adopted in Parliament in reaching a lawful order, and in respect of which both respondents claimed to have specific knowledge, and further that they will have an opportunity of opposing this application, in those circumstances, it is submitted that the respondents will not be prejudiced,” said Thabo. He said the Crown would not reveal the identity of the witnesses it seeks to parade at this juncture for security reasons.

Intimidated

He told the court that certain Crown witnesses had been intimidated such that they refused to testify and other Crown witnesses’ homes were attacked after testifying. “It follows that it would not be in the interests of the wellbeing of this witness to disclose his identity at this early stage,” said the principal Crown counsel. “I hereby give the assurance that this witness was in Parliament on June 21, 2021 and is fully able to testify on the issues that we have raised in the Notice of Motion. An affidavit has been taken from this witness and if this court grants the Crown leave to reopen case, the said affidavit will immediately be made available to the respondents,” he added.

Thabo said the affidavit was not lengthy and delt with the following issues: The events that took place in Parliament on June 21, 2021, what was discussed in Parliament on June 21, 2021 and whether a caucus decision can bind members of Parliament. It also deals with whether a unanimous decision was reached in caucus on June 21, 2021, the procedure to be followed in Parliament in order to reach a formal resolution and the duties of the Government Assurance Committee.

He said in the circumstances, the Crown respectfully submitted that it had made out a case for the relief sought.
Alternatively, and if the above sought leave is refused, the Crown prays that the court should exercise its discretion in terms of Section 199 of the Criminal Procedure and Evidence Act, 1939 and call the witness whose identity, for security reasons, will only be revealed at the hearing of the above-mentioned application.