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WHY JUDGE MUMCY FOUND MPS BACEDE, MTHANDENI GUILTY

02/06/2023 07:11:00 Mbongiseni Ndzimandze

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MBABANE - In a 147-page judgment, Judge Mumcy Dlamini has set out her nine reasons why she found MPs Mduduzi Bacede Mabuza of Hosea and Mthandeni Dube of Ngwempisi guilty of inciting violence during the unrest and murder.

It took the judge less than five minutes to pronounce the guilt verdict of the duo as she did not read the whole judgment despite protestation by Mabuza. Almost two years after being arrested, the MPs, who were arrested on July 25, 2021, were convicted by Judge Dlamini yesterday after a trial that commenced in November of the same year. MP Mabuza was acquitted of the offence of breaching COVID-19 regulations, which he was accused of committing during a community meeting that was attended by about 2 000 people at Hosea Inkhundla in June 2021.

The murder charge emanated from the death of two men who were run over by a motor vehicle that belonged to Sincephetelo Motor Vehicle Accidents Fund (SMVA ) that hit seven people at Nkwalini at an illegal ‘roadblock’ where some residents stopped vehicles and demanded money. During this period, illegal roadblocks were mounted in various parts of the country.

Judgment

The Crown led 65 witnesses to prove its case against the incarcerated MPs, who have spent one year and 10 months behind bars, despite their three unsuccessful attempts to be released on bail. The MPs led witnesses who included Nkilongo MP Timothy Myeni and Nhlambeni MP Mazwi Zwane. In her judgment, Judge Dlamini highlighted that, where more than one person set out to commit a crime, in the event their purpose was achieved, each perpetrator’s unlawful conduct should be imputed to the other. In her analysis, Judge Dlamini said it was reasonable to conclude that Mabuza informed the nation that the current government was not worth listening to or complying with its orders.

Judge Dlamini found that there was a common purpose between those who committed the crimes on the ground and the two MPs who incited them. She said where more than one person set out to commit a crime, in the event their purpose was achieved, each perpetrator’s unlawful conduct should be imputed to the other. In the charge of contravening the Suppression of Terrorism Act of 2008, the judge said noteworthy in the speeches of both the accused persons was that they informed their hearers that there were ills emanating from the appointed prime minister and all political appointees and such could only be cured by ‘review’ of the Constitution. She further noted that Mabuza, also pointed out that they would ‘fight’ and that ‘Swazis will be free’.

Interrogation

The court said, the questions that needed interrogation were what exactly they meant by ‘review’, fight and ‘Swazis will be free’? How did they intend to achieve the ‘review or the ‘fight’ in order to have Swazis ‘free’? Zooming in into the speech that was made by Mabuza at Hosea on June 5, 2021, Judge Dlamini said: “From the speech by accused No.1 (Mabuza) as extracted from the video, it is clear that he advocated for a system where the King has no power in politics and he was selling this idea to the people who were present at Hosea Constituency.”

The court said this was gathered from the extract that: “We are not fighting the monarchy. But want the power to run ourselves as a government in us. Just like all the countries of the world.” Judge Dlamini said Mabuza was direct on this point as he later stated that; “What we are saying is, let the monarchy be at a distance (akakhweshe). Let the people be there or aside or separated so that we will be able to respect our monarchy (sic).”
She highlighted that from the last sentence, it was clear that Mabuza informed the people of Hosea Constituency that the King could not be respected as long as he had a hand in politics.

The court said this point was in line with the contrast drawn from Mabuza’s speech as he stated earlier, “Queen Elizabeth does not concern herself with politics, she sits like the Queen of England and is respected by all the people. In England. She goes further to be respected by the presidents of the world.” The court observed that, that was the gist of Mabuza’s speech, which could not be disputed following that when the video was running in court, Mabuza identified himself as the person speaking without the assistance of his attorney.

Charges

Judge Dlamini said, however, nothing could be drawn against Mabuza in so far as count one and the alternative charges were concerned from the above alone. She went on to state that, what raised eyebrows against his speech was what he said consequent to the above. It was further the court’s observation that this was apparently in response to a question posed by one of the attendees, who enquired on what then would happen to the Constitution as it recognised the offices of impugned appointees.

According to the court, Mabuza responded: “The Constitution has been made by them, those who were present during that time. Today is the time when this paper is below us. It is not living in line with us. Let it be torn and let there be a fresh paper made. So that it can go in line with the Swazis. The paper that has been made by me cannot be above me. There are papers in my boot. I can tear all those papers because they are not above me. I’m the one who is above those papers (sic).” The court said such speech left the hearer to wonder as to the manner in which Mabuza intended the Constitution to be ‘torn’. Judge Dlamini said the question was, what did Mabuza mean? She said, to his benefit, Mabuza was not a student of Law as much as he was a legislator.

Matter

“To a student of Law, the Constitution cannot be a paper, let alone like papers in accused’s No.1 boot or any motor vehicle’s boot for that matter,” said the court. It was the court’s finding that the benefit of doubt in favour of Mabuza was that he could have meant that the Constitution ought to be amended. Judge Dlamini said such inference founded support from one of the Crown’s witnesses, who testified that Mabuza spoke about Section 67(1) of the Constitution and pointed out that it needed to be amended.

“The puzzle, however, does not end by the drawn inference. Accused No. 1 referred to the Constitution as a ‘paper’ just like his ‘papers in (his) boot’ which could be ‘torn’. Noteworthy though is that accused No.1 informed the people of Hosea that the Constitution cannot be above them following that it was a piece of paper,” observed the court. Coming to the speech that Mabuza made at Summerfield on June 24, 2021, Judge Dlamini said from what he said, it was reasonable to conclude that he informed the nation that the current government was not worth listening to or complying with its orders.

The court observed that during his speech, Mabuza informed his audience, which happened to be the nation, that they had made a call for an elected government. Mabuza, according to the judge, further mentioned that they did not want a government where the royalty or the appointees of the royalty had a hand. “Now, the acting prime minister was an appointee. He then pointed out that the present government had no authority to make any laws or orders by reason that it was still connected to royalty or that it was not accepted by reason that there were appointees in it,” reads part of the judgment.

Forest

The court noted that Mabuza minced no words as he pointed out that the government was ‘leading the nation to the forest’ and taking the country 56 years back in ages, whether in colonial times, it was not so expressly stated. Judge Dlamini said in brief, Mabuza informed the nation that the acting prime minister was ‘out of order’ in that he delivered a banning order yet he had no such powers. As per the judgment, Mabuza continued to state that the banning order was contrary to the provisions of the Constitution. Judge Dlamini further noted that Mabuza pointed out that even Parliament had no power to enact such contradictory laws.

He then announced; “Let me say this Swazis, you do have to deliver petitions. It is constitutional. It is a right of the Swazis. It is in the Constitution.” He, according to the court, further stated; “No one can have the power to tell you to stop.” He repeats; “No one can have the power to tell you to stop.” To drive the same point home further, he added; “The only thing he can do is to deploy the police, as he always does, to assault you if that is what they want to do.” The court said, from this speech, it was clear that Mabuza informed the nation, through the social platform, that the acting prime minister had no power to issue a banning order and that his act of passing one was unconstitutional.

Judge Dlamini went on to state that, in clarifying the lack of power by the acting PM, Mabuza informed the listeners that not even Parliament had the authority to stop them from delivering petitions. “In essence, he urged the people to continue delivering petitions. Accused No.1 did not end by advising the people that they had a constitutional right to deliver petitions. “He added another reason why they should not comply with the banning order. “Having said that not even Parliament had the authority to stop the people from delivering the petitions and that the present government came down like rain, Accused No. 1 went overboard to say the current government was not desired by them,” said the judge.

The court said, as if his hearers were hard of hearing, Mabuza repeated and said; “So then, I say wonderful Swazis, protesting is a constitutional right of expressing your grievances and oppression. Delivering a petition is a constitutional right.” The judge mentioned that Mabuza also went on to lambast government for failure to deliver, on social media. “Surprisingly, having bade the people good bye, and as if suddenly awakening from his sleeping stupor, Accused No. 1 retorted; “What was done by the deputy prime minister is unconstitutional and unlawful. The Constitution gives you the right to deliver the petitions. Constitutionally, it is your right to exercise your right that you have not been treated well,” said the court.

Mabuza, according to the court, went on to tell the people that, constitutionally, it was their right to grieve in the way they were doing that they wanted a certain government. Mabuza, as per the observation of the court, further mentioned that, constitutionally, it was their (people) right to stand up and be in the road at the time that they wanted and shout.

Corrupt

He was further quoted by the court having stated that they would never be stopped by the same government, which was corrupt. Mabuza said the government was full of corruption. Judge Dlamini said to subsequently call for continuation of delivery of petitions, especially in light of the banning order, was akin to a call for further violence that was evident during the petitions delivery. On the murder charge, the MPs were found guilty of unlawfully and intentionally killing one Thando Shongwe and Siphosethu Mtshali. In her judgment, Judge Dlamini said, it was common cause that Mabuza and Dube were nowhere at the scene of the crime when the two victims died. She said it was also common cause as could be gleaned in the speeches by the accused persons that nowhere did they advocate for violence during the delivery of the petitions or put directory during their call for the people to ‘fill up the street’.

Question

“The question is, why then did the Crown slam the present accused with the two counts of murder? The answer to the above poser lies in what the law terms as dolus eventualis - foresight or foreseeability. The inquiry is simple. Did the accused persons foresee the consequences of their actions? Did they act recklessly despite foresight of the results of their conduct? In defining foreseeability, the judge then cited the matter of S Vs Sigwili, who was facing a charge of murder.

In that matter, the court said: “The expression ‘intention to kill’ does not, in law, necessarily require that the accused should have applied his will to compassing the death of the deceased. It is sufficient if the accused subjectively foresaw the possibility of his act causing death and was reckless of such result,” she said. Judge Dlamini said this form of intention was known as dolus eventualis as distinct from dolus directus. She said the fact that objectively the accused person ought to have foreseen such possibility was not sufficient. The judge said in other words, the distinction between foresight ad objective foreseeability must not become blurred.

Conduct

Judge Dlamini highlighted that Judge Holmes enunciated the characteristics of dolus eventualis as follows: Subjective foresight of the possibility, however remote, of the accused’s unlawful conduct causing death to another; persistence in such conduct, despite such foresight; The conscious taking of the risk of resultant death, not caring whether it ensues or not and the absence of actual intent to kill.” The Crown was represented by Advocate Gareth Leppan, who had been instructed by Thabo Dlamini from the chamber of the director of public prosecutions, while appearing for the MPs was Advocate Van Vuuren, assisted by Ben J Simelane.