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THABO KUNENE MATTER CALLED IN 2 DIFFERENT COURTROOMS

19/08/2023 08:20:00 Kwanele Dlamini

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MBABANE – The perspiration on the face of the attorney representing self-confessed ‘commander’ of the solidarity forces Thabo Kunene, and his co-accused, was quite telling.

An unusual occurrence had happened at the High Court yesterday during what was supposed to be the hearing of the urgent application filed by Kunene, his family members and his co-accused Sibusiso Nkomonye. Kunene and Nkomonye want their relatives to be allowed to visit them at Matsapha Maximum Prison and the relatives want to be allowed access to them. Their attorney, Leo Ndvuna Dlamini, had to yo-yo up and down the stairs between the ground and second floors of the High Court building as the matter was called in two different courtrooms, before two different judges, almost at the same time.

One of the judges, Judge Bonginkhosi Magagula, was in an upstairs courtroom and the other, Judge Justice Mavuso, was in a courtroom on the ground floor. The original application was not in the file that was in Judge Magagula’s court and the assistant registrar used a copy when calling the matter.
As duty judge, Judge Magagula was hearing urgent applications. The application by Kunene and his co-accused came to court as an urgent matter.

The matter was the first to be called in Judge Magagula’s courtroom. However, there was no one appearing for the attorney general (AG) and Dlamini applied that the matter be stood down while he looked for a representative of the AG. Dlamini rushed downstairs and when he arrived there, he found a government lawyer, who informed him that Judge Mavuso had since postponed the matter to the third session of the High Court, which begins in mid-September 2023.

Advised

Since the matter is opposed and the AG had to file a notice of intention to oppose, Dlamini said he had indicated to the government lawyer that, should he arrive in court after the matter had been called, he should look for another attorney to stand in for him and take timelines for filing of the answering and replying affidavits. He said he had indicated to the Crown counsel that the matter should be dealt with next week but Judge Mavuso said he would not be available as he would be away next week.

Kunene and Nkomonye are currently awaiting judgment from Judge Mavuso in the matter in which they applied to be taken to hospital for medical attention after sustaining injuries in the Republic of South Africa (SA), where they alleged to have been assaulted by Andile ‘Dr Mkhulu’ Nkomonye and local senior police officers. The postponement of the matter by Judge Mavuso means that Kunene and his co-accused, as they alleged, will continue to feel the effects of the shortage of drugs and medical supplies in health institutions.

They told the court in their application that their relatives are not allowed to visit them in prison. They argued that their relatives had access to pharmacies and they want them to be allowed to purchase medication for them, since they purportedly do not get assistance in hospitals due to the shortage of medical drugs. Other applicants in the matter are Thabo’s sister, Sentelani and his niece, Nonhlanhla.

Injuries

Kunene submitted that he and Sibusiso still require medical attention due to the injuries they sustained when they were assaulted in the SA, before they came to Eswatini. According to Thabo, who alleged that they were denied access and communication with the outside world, they want their family members to buy them medication in pharmacies and bring it to them in prison. He said he had the right to demand visitation rights because his next-of-kin were able to buy him medication, since the Correctional Services and all hospitals in Eswatini do not have adequate medical drugs and other supplies.

“I am sick from the brutal assault I sustained in the SA. I suspect that my ribs were broken. The court will take judicial notice that there are no medical drugs in our local hospitals, and as such my next-of-kin will buy me medication from private pharmacies and bring it to me. “I verily believe this matter is urgent because I am only relying on outside medication for treatment herein. I was relying on my children to buy such from any pharmacies outside the Correctional Centre. It is unbelievable that I only access outside medication through my attorneys, who sometimes come to take instructions,” Thabo submitted.

Thabo and Sibusiso are facing 43 charges for allegedly contravening the Suppression of Terrorism Act, 2008. The charges include six of murder, 17 of attempted murder, nine of malicious damage to property and two counts of arson. The accused persons and their family members want the High Court to issue an order that their next of kin and other persons who might be reputable friends, associates and colleagues, whether from within or outside Eswatini, legal representatives or doctor, to have reasonable access and confidentiality to them. In the application, which has been filed under a certificate of urgency, the accused further entreated the court to compel the commissioner general of His Majesty’s Correctional Services to allow them access to communicate to the outside world, in terms of the Standard Minimum Rules for the Treatment of Prisoners.

It is further their plea to the court that it should compel the commissioner general to issue all copies of their medical treatment to their attorneys.
Respondents are the commissioner general of His Majesty’s Correctional Services (HMSC), the national commissioner of the Royal Eswatini Police Services (REPS), minister of Justice and Constitutional Affairs, commissioner of the Commission on Human Rights and Public Administration/Integrity and the attorney general.

When motivating the application, Thabo argued that the matter was urgent as he was sick and there was no medication at the Correctional facility.
He brought it to the attention of the court that he was only relying on outside medication for treatment. It is alleged that Thabo was surviving on medication from his children and next of kin, who purchase same from pharmacies outside the Correctional facility.

Children

“It is unbelievable that the applicant (Thabo) only accesses outside medication through his attorney, who sometimes comes to take instructions because his children are not allowed visitation rights,” read part of the application. The veracity of these allegations is still to be tested in court. Thabo, his sister and niece, Sentelani Kunene and Nonhlanhla Dlamini respectively, as well as Sibusiso Nkomonye are the applicants and are represented by Leo Dlamini of L.N. Dlamini and Associates. Sentelani alleged that she had earlier on been told that Correctional Services was still preparing her brother for admission, when she tried to see him on June 5, 2023.

She further submitted that on June 26, 2023, she was told that she would not be able to see Thabo as visitors were not allowed because they were waiting for superiors to grant such permission. Nonhlanhla said on July 11, 2023, she went to Matsapha Maximum Prison to visit her uncle, Thabo, and she was allegedly told that she would not be allowed to see him at that moment.