Thulani Maseko and Bheki Makhubu appeared in the Mbabane High Court before Judge Mpendulo Simelane on Tuesday 25 March 2014. The two were remanded back into custody for seven days (until 1 April 2014).
Ncamiso Manana, Makhubu’s lawyer, indicated that Makhubu was withdrawing his application for bail. On Friday 21 March 2014, Makhubu had initially applied for bail before Judge Simelane, but was ordered to file supplementary affidavits after the Crown indicated that they were opposing bail. On 25 March Manana indicated that they were withdrawing the bail application as he had not been able to file the supplementary affidavit on time due to being unable to obtain the signatures of Makhubu’s family members for confirmatory affidavits.
Ayanda Matsenjwa for the Crown indicated that he was requesting the continuation of custody for seven days and for a trial date to be set. Judge Simelane argued that he could not give a trial date without the final indictment, and Matsenjwa indicated that the indictment was almost complete and would be completed by close of business on Wednesday, 26 March.
Mandla Mkhwanazi, Maseko’s lawyer, provided a number of objections to the request for continued detention and for a trial date. First, he stated that it appeared that the accused are serving a sentence without trial for the simple common law offence of contempt of court. He said the accused should not be endlessly detained without the matter being concluded, and that there is no reason in law why the accused should be made to serve a further seven days in detention. He argued that the benefit of the doubt should go to the accused and that he should be released and issued with a summons for the trial date. He then argued that the High Court is not a remand court, and that the correct procedure in terms of the Criminal Procedure and Evidence Act is that accused persons appear before the Magistrates Court. He said that even persons facing sedition and treason charges – very serious charges – are remanded into custody by the Magistrates Court and not the High Court. He said that there was no information provided by the Crown as to why this case was being treated differently to all other criminal matters.
In response to the request for a trial date Mkhwanazi indicated that they intended making an application for the Judge’s recusal, and as such it was inappropriate for the Court to set a trial date. He said that if a date was set, and then the recusal application lodged, the date would be lost and the accused would remain in custody until a new date could be found. He explained that the basis for the recusal application will be that the presiding Judge is mentioned by name in the articles that led to the accused’s arrest and detention and so he is a potential complaint and witness in the trial. It would therefore be inappropriate for him to hear the case, and would make the judiciary a “mockery”.
Manana aligned himself with Mkhwanazi’s submissions and said that it was common knowledge that the registrar, and not the judge, set dates for criminal trials. He said that it is only in subordinate courts that applications for trial dates are made from the bar.
At this juncture the Crown requested an adjournment in order to consult regarding the question of whether the High Court had jurisdiction to remand accused persons.
After the adjournment the Director of Public Prosecutions, Nkosinathi Maseko, appeared in court for the Crown. He accused the defence of not following the correct procedure in making applications for the recusal for the judge and in relation to their complaints about the High Court’s lack of jurisdiction to remand the accused. He accused the defence of conducting a trial by ambush, and said that this matter had been before court twice last week, and complained that the DPP’s office only received the notice of withdrawal of the bail application at 12h45 on Monday 24 March. He said that any grievances the defence had should be made on affidavit and not in open court. He requested that the Court direct counsel to file proper applications, and to order the relevant time frames for this to be done in.
Judge Simelane asked the DPP to respond to the issue raised by the defence that remands should not be done in a High Court. The DPP responded that this should have been raised when the accused were first before court, on the 18th March, and that the defence should bring an application following the correct procedure and providing the Crown with an opportunity to respond. He also said that the High Court remands accused people every day during criminal trials (ie when the Court would remand an accused overnight to appear the following day for the continuation of the trial). He said that the High Court has no limits on jurisdiction and there is no legislation that prohibits the High Court from remanding individuals. He repeated that the procedure followed by the defence was incorrect, and that it is important that the Crown be given an opportunity to respond to any grievances raised by the defence.
Manana responded to the DPP’s submissions by saying that the DPP had been given the wrong information by the prosecutor, Matsenjwa. Manana confirmed that the defence had not made any formal applications before court – they had merely indicated that they would make formal applications and were in the process of instituting these. He also stated that on the 18th March there had not been an application by the Crown to remand the accused – the decision had been made by the Chief Justice mera motu. He also said that the accused had not been informed as to why they would be required to return to court on the 25th March and so they were expecting to be told the purpose that day.
Mkhwanazi fully aligned himself with Manana’s comments. He said that the defence fully agreed that the correct procedure should be followed in making any applications but that they had only mentioned the prospective applications in response to the Crown’s request for a trial date. He said that as the defence only learnt in court that the Crown intended to apply for a trial date it was the Crown, and not the defence, that was litigating by ambush. He said that their argument that the Magistrates Court was the proper court to remand individuals was in line with the Criminal Procedure and Evidence Act, and so, as they believe they are following the requirements in that legislation, the Crown should inform them of what procedure is correct. He accused the Crown of using the detentions as a way to introduce 60 day’s detention through the back door. He also repeated Manana’s assertion that the Chief Justice had mera motu detained the accused on the 18th March, and indicated that the defence had hoped that the state would recommend that the accused be released pending trial. He stated that the Court was not in the position to direct parties to file applications as the defence is the dominus litis in this matter. He stated that it was of utmost importance that the Court understand that the position the defence took in Court was informed by the Crown’s position.
The Judge adjourned to consider his ruling.
Judge Simelane ruled that contempt proceedings are sui generis and so the Court is at liberty to adopt any suitable position. He said that the defence had not referred the Court to any law that ousts the High Court’s jurisdiction on remand and said that the Constitution confers unlimited and inherent jurisdiction on the High Court. He said that therefore the Court had the jurisdiction to remand the accused persons before court. He also ruled that he was not inclined to deal with the issue of recusal as he was not seized with the substantive matter and so the question did not arise under the circumstances. He ordered that a proper application on any grievances be made and that this should be sent to the DPP. Only once all documents have been filed could a date be set for argument on those grievances. He dismissed all the defence objections and ordered that the accused be further remanded until 1 April for further directives.