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BACEDE’S KIDS’ APPLICATION DISMISSED

23/03/2024 09:27:00 Kwanele Dlamini

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MBABANE – The High Court has dismissed the court application filed by the children of former MP Mduduzi Bacede Mabuza, who complained of being denied access to him in prison.

The court dismissed the application filed by Phumlani, Phumelele and the third applicant, who is a minor, for their failure to cite their father and non-exhaustion of local remedies, which deprived the court of the jurisdiction to hear and determine the matter at this stage. Consequently, the court dismissed with costs the application, which was dated October 20, 2023. The judgment was issued on Wednesday.

When the children launched the application, they wanted the court to direct the commissioner general (COMGEN) of His Majesty’s Correctional Services (HMCS) to grant them reasonable access to their incarcerated father. The children told the court that since their father was incarcerated, they had very little access to him owing to restrictions which were imposed by the COMGEN.

They stated that they had opted to visit him as a collective, and that their father always made a request to the commissioner general’s authorities to permit their visit. They also informed the court that their last attempt to visit Mabuza was on October 6, 2023, and they were denied access to him.

Trampled

They stated that they had the right to see their father and that those rights were being trampled upon by the commissioner general who refused to allow them to see their father. It was on this basis that they approach the court.
The children argued that they had a clear right to have access to their father, and that there was apprehension of harm because of the lack of a fatherly figure in their lives.

They also stated that the refusal by the commissioner general to allow them access to their father had resulted in actual injury to them. The applicants stated that they had no alternative remedy other than to approach the court for an order to compel the COMGEN to have access to Mabuza. Mabuza and the children’s mother had filed confirmatory affidavits in this regard.

On the other hand, the COMGEN, Phindile Dlamini, raised two points of law for non-joinder of their father in the proceedings and failure to exhaust local remedies, which rendered the High Court not to have jurisdiction to hear and determine the matter at that stage. On the merits, Dlamini acknowledged that access and/or
visitation rights were basic rights enjoyed by all offenders.

However, these rights, according to Dlamini, were subject to conditions which were necessary for the general control and management of the Correctional facility. She stated that the law or regulations, which governed visitation rights, was derived from the Constitution, the Correctional Services Act of 2017, the Correctional Services Regulations of 2022 and the Nelson Mandela Rules.

When the points of law were argued, Mayibongwe Mashinini told the court that Mabuza’s children should have joined their father as of necessity because he had a direct and substantial interest in whatever order the court would issue. Mashinini argued that the children had not exhausted internal remedies, as a result, they had approached the court prematurely instead of the Correctional Services administration to seek redress in accordance with the Correctional Services Act.

On the other hand, Mzwandile Masuku, in response to the points of law, submitted that the children were independently seeking an order to have access to their father and that the point on non-joinder had no merit because they had filed the confirmatory affidavit of their incarcerated father.

Exhaust

Masuku stated that the point on the children’s failure to exhaust local remedies by approaching the Correctional Services administration also did not have merit because their incarcerated father had himself failed when he engaged the Correctional officers at the Correctional institution.

In his judgment, Judge Nkosinathi Maseko said the point on non-joinder of Mabuza in the proceedings had merit because he had a direct and substantial interest as any order which the court may make had a direct effect on him.
“Further, whatever order that this court may issue cannot be sustained or carried into effect without involving him.
“In the confirmatory affidavit filed by Mr Mabuza, I can see that he has not waived his right to be joined in these proceedings.

“Whatever order which this court grants surely will have a direct and substantial effect on Mr Mabuza, further whatever judgment is issued cannot be carried into effect without involving him i.e. if such order would be the dismissal of the application it would be prejudicial to him,” said the judge.

Judge Maseko said the fact that Mabuza had filed a confirmatory affidavit in support of his children, clearly indicated that his direct and substantial interest and that he was a necessary and indispensable party who should be joined in these proceedings. “This is not a joinder of convenience, but rather a necessary joinder for a just and fair determination of the application. “Mr Mabuza cannot be said to have waived his joinder when he has filed a confirmatory affidavit in these proceedings in support of his children.”

With regard to the point in limine on non-exhaustion of the local remedies by the applicants, Judge Maseko said Section 25 (1-8) of the Correctional Services Act No. 13/2017 (The Act) provides as follows:-
25 (1) A person who has a complaint against a Correctional Services officer or the Correctional Services shall first lodge such complaint with the commissioner general.
(2) The commissioner general shall, within 21 days of attending to the complaint under Subsection (1), notify the complainant of the decision, opinion and facts of the matter or action to be taken.
(3) Where the complainant under subsection (1) is not satisfied with the response or there is no response from the commissioner general after 21 days of lodging the complainant, the complainant may submit the complaint to the commission for its consideration and determination.

(4) When so requested by the commission, the commissioner general shall submit a comprehensive report relating to the complaint under Subsection (1) to the commission within the time specified in the request.
(5) A complaint may either be oral or written, relating to the conduct of a Correctional Services officer of the Correctional Services whether by an act or omission, submitted by a member of the public or the representative of that member of the public.
(6) Where a complaint is made orally, it shall immediately be reduced into writing by the commissioner general or the commission, and read back to the complainant who shall confirm the facts in the complaint by appending the complainant’s signature on the complaint.
(7) A person lodging a complaint shall, when so required by the commissioner general or the commission, attest under oath to the truthfulness of the fact forming the complaint.
(8) A complaint may also be lodged by a Correctional Services officer against the conduct of an institution, authority, member of the public, or against another member of the Correctional Services.

The judge said Section 25 was self-explanatory in that it provides for extensive and mandatory local remedies which must be set in motion by any person when they had a complaint against the Correctional Services. Judge Maseko said Mabuza’s children had not invoked the provisions of Section 25, whereas they were mandated by law to approach the commissioner general and exhaust the laid down local remedies. It was for that reason, according to the judge, that the High Court did not have jurisdiction to deal with this matter unless and until Mabuza had exhausted the local remedies as laid down in Section 25 of the Act.

Meanwhile, Mabuza and his co-accused, former Ngwempisi MP Mthandeni Dube are awaiting sentencing in their trial for terrorism-related charges and murder, among others.