JUDGE MUMCY DELIVERS JUDGMENT, SAYS ... BACEDE, MTHANDENI ESCAPED DEATH PENALTY

MBABANE – Former Members of Parliament (MPs) Mduduzi Bacede Mabuza and Mthandeni Dube have escaped the death penalty.

Judge Mumcy Dlamini, when sentencing the pair, said Mabuza and Dube were convicted of murder with dolus eventualis and not dolus directus. Dolus eventualis is premised on the perpetrator foreseeing the possibility of harm and reconciling with that foreseen possibility. It is different from dolus directus, in that dolus directus is present where the perpetrator’s will is directed at the prohibited result. Judge Dlamini said she considered that such was an extenuating circumstance (reduces blameworthiness) in both counts of murder. “They, therefore, escape the jaws of the death penalty,” said Judge Dlamini. Mabuza and Dube were facing, among others, two counts of murder, for which they were found guilty, after two men, Thando Shongwe and Siphosethu Mtshali, were run over by a motor vehicle at Nkwalini, in Mbabane, during the civil unrest in 2021.

Sentenced

Yesterday, Judge Dlamini sentenced Mabuza to 15 years for the murder of Mtshali and the same number of years for that of Shongwe. Dube, on the other hand, was sentenced to 10 years for the murder of each of the two deceased persons. For the main charge, of contravening the Suppression of Terrorism Act, 2008, in that they were found guilty of inciting members of the public to overthrow the legitimate government, Mabuza was sentenced to 25 years imprisonment with no option of a fine. Dube on the other hand was sentenced to 18 years behind bars with no option of a fine.

This charge had two alternative charges. On each of the two alternative charges, Mabuza was sentenced to 15 years imprisonment without an option of a fine. Dube was sentenced to 10 years imprisonment without an option of a fine on both alternative charges. In total, Mabuza was sentenced to 85 years behind bars, while Dube’s cumulative sentence is 58 years imprisonment. The judge also ordered that the sentences are to be backdated to the date of their arrest, which is July 26, 2021. Judge Dlamini ordered that the sentences on the alternative charges and murder, for both convicts, shall run concurrently with the terrorism charge. This means that Mabuza will spend 25 years in prison and Dube 18 years.

Judge Dlamini stated in the judgment why, with regard to Mabuza, his evidence did not carry a lot of weight. “I must highlight that the consideration of his mitigating factors does not carry as much weight as that of accused N0.2 (Dube). The reason is obvious. Accused N.01 did not make a sworn statement. He testified from the dock. For that reason, his evidence could not be tested. This court was denied the opportunity to assess his remorsefulness in that regard. 

“I do, however, take into consideration the circumstances as mentioned in paragraphs 15 to 18, of this judgment in passing sentence. These all weigh in his favour. I also consider the factor mentioned in paragraph 122, herein to his credit. I do also consider the aggravating circumstances as pointed out by the various witnesses on the consequences of their utterances,” said the judge.  The factors mentioned in paragraphs 15 to 18 are that Mabuza is a first-time offender; he is a married man with 16 children, businessman who started from humble beginnings and employed more than 500 people.

Convicted

In paragraph 122, it was stated that the two were convicted of murder with dolus eventualis and not dolus directus. About Dube, the court considered his mitigation evidence, which was adduced under oath. “I do so with a higher degree of weight. I take into account his personal circumstances as summarised under paragraphs 19 to 26 herein. I, however, consider that accused No 2 was not forthcoming on answering questions put to him by the Crown.  “That spoke to the degree of his remorsefulness. Like his accomplice, I consider the impact of the speeches made, which led to the devastating situation, as testified by the Crown’s witnesses, which resulted in a highly significant loss of both lives and properties,” the judge stated in the judgment.

Part of Dube’s mitigation was that he decried the death of many people who were killed during the unrest and the destruction of property. He prayed that the affected people should heal and find peace in their lives. Judge Dlamini said, like Mabuza, the second accused, Dube, the court considered in his favour also that the murder charges were accompanied by extenuating circumstances in the  form of dolus eventualis. The court recounted the damages experienced by Eswatini, according to Judge Dlamini, as a result of the utterances and actions of the former MPs. “It is apposite to conclude that the days succeeding June 24, 2021, were doomsday in this country.

Every region was pounced upon by unknown plunderers and arsonists.  “Both government’s and civilians’ properties were marauded, vandalised and set ablaze. Only a few buildings survived masticate of the fire. “Sadly, even those buildings whose walls were left standing, were nothing else but former ghosts of themselves. No doubt, those days shall go down into the echelons of history as the days when a dark cloud covered the kingdom,” Judge Dlamini stated.

Hopeless

According to the court, businesspeople and employees alike, who were law-abiding citizens, ‘were left hopeless and helpless, wrecked and in despair, as their hard toil labour was reduced into rubbles of ashes within a short space of time and some, right before their eyes’.  “The total estimated value of the loss of properties was said to be almost a quarter of a billion Emalangeni, excluding cash lost in the process.  “More pathetically, that was not the only disaster that befell the country. Many lives were lost in the process, of which no monetary value could be placed. “Moreover, no amount of agony could ever resuscitate the lost souls in order to recompense loved ones.

“Why? In civil law, a tongue that cannot be controlled leads to a suit of defamation,” further read the judgment. In this matter, the Crown was represented by Advocate Gareth Lepan.
Mabuza and Dube were represented by Advocate Jacobus Van Vuurren, assisted by Ben J. Simelane and Mhlengi Mabuza.  South Africa-based Lawyer Sicelo Mngomezulu was part of the former MPs’ legal team, until he was declared an undesirable immigrant by the minister of Home Affairs in September 2022.

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