February 2014:Two articles, written by Thulani Maseko and Bheki Makhubu, were published in The Nation magazine, criticising the Swazi judiciary and the Chief Justice, Michael Ramodibedi.
17 March 2014: Maseko was arrested and charged with contempt of court. Maseko was detained overnight, and was not allowed access to his legal representative. Policemen at the Mbabane Police Station said that the Chief Justice ordered them to deny access to Maseko’s lawyer.
18 March 2014: Makhubu was arrested and charged with contempt of court
18 March 2014: Maseko and Makhubu were brought before the Chief Justice in chambers at the Mbabane High Court. Neither Maseko nor Makhubu’s legal representatives were informed of this, and it was purely by coincidence that the lawyers saw the prosecutor at the court building and followed him to the Chief Justice’s chambers. The Chief Justice remanded Maseko and Makhubu into custody for seven days – despite no application for their detention from the prosecution. The Criminal Procedure and Evidence Act requires that all accused persons be brought before a Magistrate in open court, and confers remand jurisdiction only on the Magistrates Court.
SALC, the International Commission of Jurists, and the SADC Lawyers Association issued a statement in response to the detention of Maseko and Makhubu. The statement can be read here.
21 March 2014: Makhubu applied for bail before Judge Simelane. The Crown indicated that they intended to oppose bail as they deemed Makhubu to be a flight risk. Judge Simelane ordered that supplementary affidavits be prepared by Makhubu and postponed the matter to 25 March 2014.
25 March 2014: Maseko and Makhubu appeared before Judge Simelane. Makhubu’s counsel, Ncamiso Manana, indicated that they had withdrawn the bail application. The crown requested a continuation of the detention for a further seven days and for a trial date to be set. Maseko’s counsel, Mandla Mkhwanazi, raised a number of objections to the arrest and detention, as well as objecting to the request for a trial date to be set saying that he intended bringing an application for the judge’s recusal.
Judge Simelane remanded Maseko and Makhubu back into custody for a further seven days and instructed the defence counsel to follow the correct procedure if they intended on bringing any supplementary applications.
For more information, read our court diary.
28 March 2014: Makhubu relaunched his bail application. The matter was postponed to 2 April.
31 March 2014: Maseko launched an application against the Chief Justice, the Director of Public Prosecutions, the Attorney General and the government of Swaziland challenging the constitutionality of the arrest warrants, the indictments, and the detention.
1 April 2014: Counsel for Maseko and Makhubu (a new counsel, Senior Counsel Lucas Maziya) approached Judge Simelane in chambers and indicated that Makhubu would be filing an application for the recusal of Judge Simelane from his bail application. In court Judge Simelane ordered that written submissions be filed by both the defence and the Crown, and postponed the matter to 9 April for the recusal application hearing.
Makhubu’s bail application, due to be heard on 2 April, was suspended pending the finalisation of the recusal application.
3 April 2014: Makhubu applied to be joined to Maseko’s constitutional application.
4 April 2014: The application for the arrest warrants, indictments, and detention to be declared unconstitutional, unlawful, and irregular was heard before Judge Mumcy Dlamini. The Crown’s sole argument was that a single judge of the High Court did not have jurisdiction to hear the matter.
For more information, read our court update.
6 April 2014: Judge Dlamini ruled that the application brought by Maseko and Makhubu to challenge the constitutionality of the arrest warrants, indictments and detention succeeded.
In her written judgment (available here) Judge Dlamini said that although a full bench of the High Court would ordinarily be required to hear a matter reviewing its own decision, this requirement was dispensed with by the Chief Justice who had rejected, as unnecessary, the defence request for a full bench to be constituted.
She said that when Maseko and Makhubu were brought before the Chief Justice in chambers he had not been aware of the objections raised by Maseko and Makhubu that the requirements in the Criminal Procedure and Evidence Act had not been complied with. She held that if he had, he would not have issued the warrants of arrest. She also held that the Chief Justice should have called on Maseko and Makhubu and asked them to show cause why they should not be found guilty of contempt, rather than issuing them with a warrant of arrest.
She therefore ordered that the application succeeded, and that the warrants of arrest be set aside.
Maseko and Makhubu were released from custody, but soon after their release the Crown lodged an appeal to the judgment.
7 April 2014: New arrest warrants were issued for Maseko and Makhubu, and there was information that warrants had also been issued for the arrest of two court officials involved in coordinating the liberation warrants issued after Judge Dlamini’s ruling.
9 April 2014: Judge Simelane appeared in court expecting Maseko and Makhubu to appear, following his ruling of 1 April that postponed the recusal application to 9 April. Maseko and Makhubu initially came to court of their own volition, but then left on the advice of their counsel. In Court the Crown argued that Maseko and Makhubu were required to appear in court, and the defence argued that there was no need for them to appear as they had been released following Judge Dlamini’s ruling on 6 April.
Judge Simelane ordered that as an appeal had been lodged against Judge Dlamini’s ruling that judgment was automatically stayed. He then ordered that warrants of arrest be issued.
Maseko and Makhubu were both arrested and taken into custody.
9 April 2014: Lawyers for Human Rights Swaziland lodged an appeal against Simelane’s ruling.
10 April 2014: Maseko and Makhubu appeared before Judge Simelane and were remanded into custody until 14 April. He ordered that a pre-trial conference would take place the following day, and that the contempt of court trial would commence on 14 April, despite the defence objections that the trial could not commence when there were two related appeals pending.
10 April 2014: Counsel for Maseko and Makhubu filed an application for bail, to be heard the following day.
10 April 2014: The Law Society of Swaziland registered an application challenging the appointment of Judge Simelane as a judge.
11 April 2014: Maseko and Makhubu’s bail application was due to be heard by the duty judge hearing bail applications, Judge Maphalala. The court file was not before Judge Maphalala and could not be found. It was later found in Judge Simelane’s possession. He said that as he was the judge assigned to that trial he would preside over any ancillary matters related to the case. He postponed the bail application to 14 April.
14 April 2014: Judge Simelane heard Maseko and Makhubu’s application for his recusal. He refused to recuse himself from the case, and remanded them back into custody until 22 April.
Present Position
An appeal is pending to Judge Dlamini’s judgment that found that the warrants of arrest, indictment and detention were unlawful.
An appeal is pending to Judge Simelane’s ruling that new arrest warrants be issued.
There is an application pending that challenges the appointment of Judge Simelane as a Judge.
Maseko and Makhubu remain in detention.
Further Analysis
SALC Executive Director, Nicole Fritz, wrote an opinion piece for the South African The Sunday Independent. It is available here.
SALC’s blog post on this case is available here.
This entry was posted in Blog, Media Defence, Swaziland and tagged Freedom of Expression, Makhubu, Maseko, swaziland. Bookmark the permalink.
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