COURT UPDATE: MASEKO AND MAKHUBU CHALLENGE THE CONSTITUTIONALITY OF THEIR ARREST AND DETENTION

Salc : Caroline James

On Friday, 4 April 2014 the Mbabane High Court heard argument in the urgent application brought by Thulani Maseko and Bheki Makhubu to challenge the constitutionality of their arrest warrants. The application was initially brought only by Maseko, but on Thursday, 3 April 2014, Makhubu applied to be joined to the application.

Maseko and Makhubu sought an application declaring that the Chief Justice, Michael Ramodibedi, acted beyond his powers  in issuing arrest warrants against Maseko and Makhubu. Maseko and Makhubu argued that as the Chief Justice has no power in law to issue warrants of arrest, he therefor acted ultra vire in doing soThe Criminal Procedure and Evidence Act,1938 places the responsibility of issuing arrest warrants on Magistrates.

The concern in this case is that the Chief Justice is a complainant to the criminal charge the arrest warrants were issued in connection with. Maseko and Makhubu have been charged with contempt of court relating to articles in which they criticised the judiciary, and the Chief Justice in particular. Counsel for Maseko and Makhubu argued in court that because of this conflict of interest the Chief Justice was not following the due process of the law and that Maseko and Makhubu’s constitutional rights were being infringed by their irregular arrests and detention.

In addition, the correct procedure had not been followed when issuing the warrants as no formal application by the police was made and the affidavits filed were made by the then Acting Registrar of the High Court, an official who is subordinate to the Chief Justice and so also lacked objectivity.

Counsel for Maseko and Makhubu argued that the act of issuing the warrants of arrest was in effect a “semi-administrative” function and not a judicial one and therefore subject to revision and being set aside.

In response, the Crown argued that as the case concerned a constitutional matter, a full bench needed to be constituted and that as the Court consisted of only a single judge it was not properly constituted and therefore had no jurisdiction to hear the matter.

Judge Mumcy Dlamini stood the matter down and will deliver judgment on Sunday, 6 April 2014 at 14h30.

UPDATE: In a brief ruling on Sunday, 6 April 2014 Judge Dlamaini ruled that Maseko and Makhubu’s application was successful, and Maseko and Makhubu’s arrest warrants and detention were set aside. Soon after, Maseko and Makhubu, who were not present in court, were released from the Sidwashini Detention Centre.

Note: this blog has been prepared from notes sent by Velaphi Mamba, OSISA Swaziland Programme Officer, who was in court today.

Follow Velaphi on Twitter: @BlackMambaV

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