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MPS BAIL FATE: ALL EYES ON JUDGE MUMCY TODAY

15/12/2022 08:45:00 Mbongiseni Ndzimandze

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MBABANE – All eyes will be on Judge Mumcy Dlamini once again today.

The judge is expected to deliver her judgment on Members of Parliament (MPs) Mduduzi Bacede Mabuza and Mthandeni’s recent application for bail. The MPs have been languishing in custody for 19 months after Judge Dlamini dismissed their two previous bail applications. Their first bail application was dismissed on the basis that they made bare denials on the allegations that were levelled against them by the Crown. Judge Dlamini dismissed their second application after she found that the High Court was functus officio or precluded from entertaining same. If Judge Dlamini today finds that the interest of justice favours the release of the duo, this means that they will spend Christmas in the comfort of their homes.

Ever since Judge Dlamini indicated during the MPs’ last court appearance that she would issue her judgment on bail, there had been a lot of speculation, with others saying the incarcerated MPs might spend Christmas at home, while others said they had lost confidence in the country’s justice system. All these speculations will be put to rest when Judge Dlamini delivers her judgment this morning. Before deciding the incarcerated MPs’ third bail application, Judge Dlamini previously stated that she had to establish what happened in the Supreme Court, where the legislators’ appealed against their two dismissed bail applications were heard. The MPs filed their third bail application on August 30, 2022. When the matter was last in court, Advocate Jacobus Van Vuuren submitted that the High Court retained the right to entertain a bail application at any stage of the trial before the accused persons’ conviction.

Risk

He said the circumstances raised by the MPs in the application were vastly different. He also argued that the MPs were not a flight risk and that the court had heard the Crown’s case; that it was based on the videos of the speeches made by the MPs last year. “We have taken the court into our confidence. The accused have taken to the stand. The court now has a full picture of what happened,” said Advocate Van Vuuren. He also told the court that there was no evidence that there might be public disorder if the MPs were released. Judge Dlamini said at the back of her mind, while the advocate was making submissions, was that the matter had been to the Supreme Court. Advocate Gareth Leppan, who represents the Crown, submitted that the Supreme Court struck off the roll the ‘new application’ for bail and it was not to be pursued without leave. The advocate said the new bail application, as per the Supreme Court, was not to be pursued without its leave.

Advocate Van Vuuren said there was no fresh application in the Supreme Court except for the appeals against the two dismissed bail applications. He told the court that the Supreme Court, when issuing the order that the appeal that was struck off the roll was to be pursued with leave of court, was dealing with the appeal against the judgment in the bail application that was dismissed on September 14, 2021. Judge Dlamini said that was worse for the MPs’ case. “They said I’m functus officio and can’t hear a new bail application. This is a new application. Why do you need leave for that one and not this one?

clarification

“I am at a loss that the Supreme Court said you need leave to pursue that bail. Who is going to hear it if you get the leave? Is it this court? Why not seek clarification from the Supreme Court order and take it from there,” said Judge Dlamini. The judge said the Supreme Court had said she was functus officio and for the new bail application to be entertained, the MPs had to seek leave of court. Advocate Van Vuuren said the appeal was struck off the roll, ‘so there is no appeal now’. Not only is Judge Dlamini expected to issue judgment on the bail, but will also make her ruling on whether the Crown should be allowed to open its case against the MPs. The application to reopen the case is vigorously being opposed by the MPs. Despite closing its case on May 5, 2022 after leading 62 witnesses, the Crown now intends to lead further evidence in respect of the events on June 21, 2021 or procedures of Parliament.

Resolution

This is the day when a formal resolution was reportedly adopted in Parliament, authorising that the petitions delivery to be extended to June 26, 2021. MP Mabuza said although it was possible for the Crown to reopen its case to rebut evidence tendered by an accused person, this procedure was allowed only in exceptional circumstance. These circumstances, according to MP Mabuza, would include the prosecution being surprised by new facts which they could not have foreseen. MP Dube filed a confirmatory affidavit. According to the MPs, 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. MP Mabuza submitted that 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 MP Mabuza, was to promote the finality of litigation.