STATE: JUDGE MUMCY MISDIRECTED HERSELF
MBABANE – The State has alleged that High Court Judge Mumcy Dlamini erred and misdirected herself by overturning the decision of the Chief Justice Michael Ramodibedi.
This is contained in an appeal filed by the office of the Attorney General yesterday.
Appellants in the matter are the Chief Justice, Director of Public Prosecutions, the Attorney General and the Swaziland Government
Judge Dlamini, on Sunday, set aside the warrant of arrest that was issued by the Chief Justice against Human Rights Lawyer Thulani Maseko and The Nation Magazine Bheki Thwala. They are facing charges of contempt of court which emanated from articles which they wrote in the monthly magazine.
The appellants are represented by Senior Crown Counsel Vusi Kunene from the Chambers of the Attorney General.
“The judge a quo (judge of the court of first instance) erred and/or misdirected herself in sitting in judgment over the decision of the Chief Justice. That decision could only be overturned by the Supreme Court,” reads part of the appeal.
“The Judge a quo erred and/or misdirected herself in assuming review jurisdiction whether declaratory or not in the matter contrary to the mandatory provisions of Section 152 of the Constitution of Swaziland in as much as His Lordship the Chief Justice sitting in the High Court is not an inferior court,” reads part of the appeal. The State also submitted:
“The court a quo erred and/or misdirected itself in inviting Makhubu’s lawyer to deal with issues of merits when it was a point of law of jurisdiction that had been dealt with”.
It was further argued by the appellants that Judge Dlamini erred or misdirected herself in dealing with the merits of the case while the court was called upon to deal with jurisdiction which was either to be upheld or dismissed.
Before Judge Dlamini, Kunene contended that in terms of the Section 152 of the Constitution, the High Court had powers to review decisions of all subordinate courts, tribunals and any lower adjudicating authority.
He stated that Section 148 provides that (1): “The Supreme Court has supervisory powers over all courts of judicature and over any adjudicating authority and may, in discharge of the jurisdiction, issue orders and directions for the purpose of enforcing or securing the enforcement of its supervisory power, (2) The Supreme Court may review any decision made or given by it on such grounds and subject to such conditions as may be prescribed by an Act of Parliament or rule of court, (3) In the exercise of its review power, the Supreme Court shall sit as a full bench”.
The defence counsels Mandla Mkhwanazi and Advocate Lucas Maziya argued that Section 31(1) of the Criminal Procedure & State Evidence (CP&E) Act provides: “Any magistrate may issue a warrant for the arrest of any person or for further detention of a person arrested without a warrant on a written application subscribed by the Attorney General or by a local prosecutor or any commissioned officer of police setting forth the offence alleged to have been committed and that information taken on oath, there are reasonable grounds of suspicion against such person, or upon information to the like effect of any person made on oath before the magistrate issuing the warrant.”
The defence counsels, however, argued that the powers to issue warrants of arrest were vested upon a magistrate.
In her judgment, Judge Dlamini said the Chief Justice could not have issued a warrant of arrest if it was brought to his attention that the CP&E vests the powers to issue warrants of arrest on magistrates, that there ought to have been a written application for the warrant of arrest of the applicant as per Section 31 of the CP&E, that the affidavits used in support of the warrant were incompetent in law following that they were commissioned by an officer who is directly under the supervision of the first respondent’s (Chief Justice) administration whereas he was the first respondent as the victim of the article under which warrant the of arrest relates thereby rendering her commission partial and that the matter of such magnitude viz incarceration of people ought to have been deliberated in open court.
“It is my considered view that the honourable first respondent (Chief Justice) would have not issued the warrant of arrest had the above been brought to his attention,” she said.
The judge said similarly, the Director of Public Prosecutions ought to have adopted a simple procedure of calling upon Makhubu and Maseko “to show cause why they should not be found guilty of contempt’’.
“In totality of the above it would be expedient for the orders to be granted. In the foregoing, the following orders are entered: Applicants application succeeds, applicants warrants of arrest is set aside and no order as to costs,” ordered Judge Dlamini.
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