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‘GAWUZELA’S SON AND CO-ACCUSED: RELEASE OUR CELLPHONES, DON’T SWITCH THEM ON

18/03/2023 09:18:00 Kwanele Dlamini

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MBABANE – ‘Gawuzela’s son and his co-accused SWALIMO and EFF Swaziland members do not want investigators to switch on the cellphones police took from them during their arrest.

Five cellphones are among 16 items that were detained by the police from Zweli Simelane, Economic Freedom Fighters (EFF) Swaziland member Siphosethu Malinga and Mxolisi Jabulani Simelane, who is a member of the Swaziland Liberation Movement (SWALIMO). The cellphones are a Nokia, black Stk, black Samsung J4 Core, purple/blue Huawei and a black VPhone. The detained items include four SIM cards

Contravening

The trio was arrested on March 9, 2023. They face three counts of allegedly contravening the Suppression of Terrorism Act, 2008, two of robbery and one of contravening the Passport Act of 1971. They appeared at the High Court yesterday for their second remand hearing. They made their first court appearance on Monday at the High Court, which is the court of first instance for terrorism cases.The Crown obtained an order to detain the accused persons’ items on Monday. The application to detain the items was made in terms of Section 23 (1) of the Suppression of Terrorism Act of 2008.

Detention

The section provides for the detention of a person. The accused persons have filed a notice to raise points of law for the court to issue an order discharging the detention order. During the remand hearing, Lucky Howe, who represents Zweli, told Judge Justice Mavuso that their difficulty was that Section 21 provided that the detention should be for a period of 48 hours and an extension should not exceed seven days. Howe, who appears in the matter alongside Human Rights Lawyer Thabiso Mavuso and Professor Dlamini, who appears for Mxolisi and Malinga respectively, said a period of 48 hours lapsed on Thursday. As a result, Howe said the detained cellphones should be released to the accused persons.

Independent

“They should return our phones, give them to the court, which will direct on what should happen and find an independent person to keep them,” said Howe. Acting Director of Public Prosecutions (DPP) Lomvula Hlophe applied that the cellphones be kept wherever they are and not be released to the accused persons. Howe said the cellphones must not be switched on until the matter in which they challenged the order to detain the accused persons’ items was finalised. Judge Mavuso said it was in the interest of justice that all the parties must be heard. The judge said if there was any filing, it must be such that the court would have a balanced view of what was before it. Judge Mavuso stated that since the accused persons argued that the detention period of 48 hours had lapsed, the court would have to ascertain on the papers to be filed the obtaining situation.

Trust

Howe applied that during the period of filing papers before the matter was heard, ‘may the phones not be switched on. We trust that the DPP will not have an issue with that’. Judge Mavuso said he could not respond to that because he was yet to see the full set of papers to be filed. Hlophe told the court that the Crown would file its papers next Wednesday and was not ready to proceed with the matter yesterday. Thabiso said he held a different view regarding the operation of Section 23 of the Act and that he would file his papers on Monday. In the notice to raise points of law, the accused persons submitted that the Crown’s application to detain their items in terms of Section 23(1), of the Suppression of Terrorism Act of 2023, was irregular, defective to such an extent that it could not be cured and did not meet the requirements in terms of the mentioned section.

“The application is fatality effective in that it does not meet the requirements in terms of Section 23 (2), which is a prerequisite, prior to the application being made by the applicant (Crown).“The applicant has not demonstrated and or presented to the court, that he has the written consent of the attorney general, prior to him moving the said application. The said Subsection 23(2), only makes provision for the detention of a person, not items found by a police officer or any items or property belonging to an individual, if it does who may have been the subject of an investigation,” reads the accused persons’ papers.

Defective

They also submitted that the Crown’s application was allegedly further defective in that the section of the Act makes provision that such detained person shall only be detained for a period not exceeding 48 hours, in the first instance, and may on application made by a police officer, be extended for a further seven days. The present order, according to the trio, could not be enforced in that it was moved by the Crown more than four days after Malinga and Mxolisi had been detained. “The said 1st and 2nd accused (Malinga and Mxolisi) were arrested and detained by police officers on Thursday the 9th day of March 2023, and have been under their custody since then until they were presented to the court,” submitted the accused persons. They also informed the court that the application in the notice of motion made no provision, where the said individuals were to be detained, which is a prerequisite in terms of the said section.

Prerequisite

“Section 23(5) makes it a further prerequisite that the applicant should state the conditions upon which the person is to be detained, including conditions related to access to medical offices as the case may be. “Accused is an amputee and therefore requires medical attention and no such provision has been made by the applicant when it is glaring that the accused person shall require same. “Further the said application does not meet the requirements of the section in that the applicant has not placed before the court any evidence confirming that the items belong to the 2nd and 3rd accused (Mxolisi and Zweli) and form part of an investigation and the detention is to prevent interference with an investigation under the Act.”

The trio alleged that no facts or allegations, which were contained in the application, connect and or that the said accused persons had in anyway interfered in or disrupted any form of investigation by the police officers in relation to an offence to which they were charged or to be charged with.
When the application was made before the court, they argued that they had already been detained and were represented by their legal representatives in terms of Section 21 of the Constitution.

Application

They said the order, therefore, should not have been granted by the court, in view of the fact that the application had not been served on them as they had not appeared before the court. The trio pointed out that the items sought to be detained were already in police custody and possession. The matter is pending in court.