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MBABANE – Two and a half months later, MPs Mduduzi Bacede Mabuza of Hosea and Mthandeni Dube of Ngwempisi have learnt why their third bail application was dismissed in December 2022.

Judge Mumcy Dlamini yesterday handed down her reasons for dismissing the MPs’ bail application on December 15, 2022. On the day she dismissed the application, Judge Dlamini said reasons for the judgment would follow.
On February 1, 2023, the MPs, through their attorneys, wrote to the registrar of the High Court requesting her to approach Judge Dlamini on their behalf for the reasons for the judgment dismissing their bail application.

The judge stated in her reasons that once the court of first instance had heard the first bail application and refused it, its hands were tied. “It cannot hear a subsequent bail application no matter the grounds. To do otherwise would offend the dictates of the doctrine of functus officio and res judicata,” said the judge. Res judicata means that a matter has been adjudicated by a competent court and may not be pursued further by the same parties. Functus officio is having fulfilled the function, discharged the office, or accomplished the purpose, and, therefore, of no further force or authority.

Judge Dlamini also said the Supreme Court made a definite pronouncement on the position of the law regarding subsequent bail applications by the same parties under the same charge. This court is now bound by the principle of stare decisis (doctrine of precedent). After Judge Dlamini dismissed the MPs’ first two bail applications, the accused persons approached the Supreme Court with two separate bail appeals.
The MPs lost the first appeal because they filed it late by seven days and their condonation application was unsuccessful. At the time the MPs were represented by the now late Human Rights Lawyer Thulani Maseko.  On the second bail appeal, the Supreme Court ordered that the new bail application be struck off the roll, and it was not to be pursed without leave of court. In their third application, also before Judge Dlamini, the MPs first raised a point in limine to the effect that the High Court was competent to entertain their bail application by virtue of Section 96 (1), (2) and (5) read with section 96(1)(a) and (b) of the Criminal Procedure and Evidence Act No. 67 of 1938. They further pointed out that their application was urgent.

On the grounds for the third bail application, the accused persons deposed that there was no likelihood that they would endanger the safety of the public or any individual or commit the said offences again. They said they would not evade trial by reason that they had already testified in defence that they were born and bred in the kingdom.
All the Crown’s witnesses, submitted the MPs, had already given evidence and therefore they could not be intimidated by them. They further told the court that there was no likelihood for them to undermine the proper function of the criminal justice system or disturb peace and public order. The duo said the court may order proper conditions for their bail to ensure their further attendance to their trial.


On the Crown’s case, the MPs pointed out that they had given evidence and that their defence reflected that the Crown’s case was very weak. They had denied the evidence by the Crown’s witnesses and said all they did was to explain to the people their constitutional rights. The petitions delivery banning order which was said to have been contravened by them, they submitted, was unlawful. They denied that the riot by the people followed after they had encouraged them to continue with the delivery of the petitions. On the counts of murder, they informed the court that there was no iota of evidence incriminating them.

In response, the Crown also raised a legal point to the effect that the High Court lacked jurisdiction to entertain the matter by reason of it being functus officio. On the merits, the Crown contended that the MPs moved an application in terms of Section 174(4) of the Criminal Procedure and Evidence Act No. 67 of 1938 to be acquitted and discharged but such application was declined. The Crown submitted that the evidence against the MPs was so strong such that if they were released on bail, they would evade trial. Their release on bail, according to the Crown, would jeopardise the proper functioning of the criminal justice system.

Judge Dlamini, when dealing with the point raised by the Crown compelling the accused persons to seek leave of the Supreme Court before filing the present application, said from the judgment of the Supreme Court, it was clear that the court referred to the bail application filed by the MPs before the same court (Supreme Court). “The Supreme Court held that the applicants ought to apply for leave to re-instate that bail application. It certainly did not refer to the bail application serving before this court. In that regard, the point taken at the instance of the respondent (Crown) stands to fail,” said the judge.

When Judge Dlamini dismissed the MPs’ third bail application on December 15, 2022, MP Dube said the judge had done a good thing by not granting their application for bail. The judge had also dismissed the Crown’s application to reopen its case. When MP Dube first told them that the dismissal of their bail application would work to their advantage, he had to explain himself as what he said was seemingly unexpected.


When commending Judge Dlamini on her decision to deny them bail, MP Dube said if their application had been granted, stringent conditions would have been attached, which would not have been favourable to them. Ngwane National liberatory Congress (NNLC) President Sibongile Mazibuko chipped in and asked if the MPs would have returned to Parliament.

MP Dube explained that their release from custody would have seen them being constantly monitored. He said during the monitoring, their lives would have been in danger ‘because they have started shooting people’. “So, (Judge) Mumcy has done a good job by not releasing us. We are safe where we are,” said MP Dube. One of the MPs who had joined their incarcerated colleagues’ supporters enquired from MP Dube: “How are you safe when they sometimes assault you?”The Ngwempisi MP explained that the issue had been fixed and those who were responsible for assaulting them had apologised and the matter was put to bed. He said the Correctional officers realised their error and apologised.

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