MPS BACEDE, MTHANDENI QUESTION LENGTH OF TRIAL

MBABANE – MPs Mduduzi Bacede Mabuza and Mthandeni Dube have raised concern about their case taking long to conclude.

Yesterday, the Members of Parliament (MPs) for Hosea and Ngwempisi were at the High Court for arguments on the Crown’s application to reopen its case. During the arguments, their legal representative, Advocate Jacobus Van Vuuren told the court that the MPs were in custody and prejudiced.  The advocate applied that the Crown’s application to reopen its case at this stage of the trial should not be granted. In its application, the Crown wants to be allowed to reopen its case, which it closed on May 5, 2022, and call a witness who would testify on a parliamentary procedure, more especially as it relates to decisions taken during a caucus. The witness, according to the Crown, would not be revealed for now for security reasons. The Crown moved the application after the defence had closed its case on November 16, 2022.

Advocate Van Vuuren wondered if the case should drag further and when it would be concluded. He pointed out that the High Court would go on recess at the end of this week and the matter would proceed again next year. “Litigation must come to an end. This case has been dragging for some time. When are we going to conclude this matter? It is only in exceptional circumstances that a case can be reopened,” said Advocate Van Vuuren. He said MP Dube had dealt in great detail with the evidence that the Crown sought to reopen its case based on.  The MPs, who are accused of committing crimes under the Suppression of Terrorism Act and murder, among others, have been on trial for over a year. The Crown, in its heads of argument, stated that reopening a case or presenting a case in rebuttal was not a novel concept and significant jurisprudence existed, allowing this step where circumstances justified such further evidence.

Advocate Gareth Leppan said a court had a wide discretion to allow such evidence to be led. According to the advocate, a prosecutor may be permitted by the court to present evidence in respect of a new matter introduced during the course of the defence evidence. He said many courts had adjudicated upon this issue. Advocate Leppan stated that the requirements that should be met before the court granted such an application included that there should be some reasonably sufficient explanation, based on allegations which may be true, why the evidence was not led timeously. Another requirement, according to the advocate, is that the evidence should be materially relevant to the outcome of the trial and that there should be a prima facie likelihood in the truth of the evidence. Advocate Leppan said during the course of the defence evidence, a new matter was introduced, which the prosecution could not have been expected to foresee. He told the court that the prosecution, after the defence had closed its case, may be permitted to present evidence in rebuttal.

The defence applied that the Crown’s application should not be granted. The MPs argued that the reopening of a case could be done only in exceptional circumstances. These circumstances, according to the MPs, include the prosecution being surprised by new facts which they could not have foreseen. They said if there was an indication of the facts, whether during cross-examination or in any other manner, the prosecution had to lead evidence in rebuttal before closing its case. According to the accused persons, the general rule was that a party who had formally closed its case would not be permitted to present any further evidence by calling more witnesses. The purpose of this general rule, said they submitted, was to promote the finality of litigation. They further told the court that the court would, however, refuse to reopen the case if the opponent had, during the trial, given an indication of the matter through cross-examination, for example, or other ways. The court will make its ruling on this matter tomorrow, where the court will also issue a judgment on the MPs’ recent bail application.

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