By NKOSINGIPHILE MYENI | 2023-06-02
Judge Mumcy Dlamini took less than five minutes to deliver the verdict in the case of the two Members of Parliament, Mduduzi Mabuza and Mthandeni Dube yesterday.
In pronouncing the judgment, the judge found the legislators guilty of three of the four charges that relate to the contravention of the Suppression of Terrorism Act and two counts of murder.
Sentencing is yet to be delivered.
The MPs were charged with contravening the Suppression of Terrorism Act that in June 2021 in the four regions, they committed a terrorist act by inciting people to revolt against the constitutionally established government.
The charge further stated that consequences of the incitement were riots in all the four regions, which caused loss of life, bodily injuries and destruction of private properties. They also faced murder charges following the deaths of Siphosethu Mtshali and Thando Shongwe on June 29 during the unravelling civil unrest at Hilltop along Malagwane public road.
They were also charged with contravening COVID-19 Regulations of 2020 under the Disaster Management Act of 2006 committed on June 5, 2021 at or near Hosea in the Shiselweni region, for which Mabuza was acquitted.
The MPs were charged with the former Siphofaneni MP, Mduduzi Simelane, who evaded arrest and is on the police’s wanted list.
The legislators pleaded innocent to all the charges.
As the judge read the last part of the judgment, where she pronounced the verdict, the legislators remained expressionless and appeared as if they were prepared for the outcome.
Their wives also did not show any emotion and immediately left after the judge had finished delivering her verdict and exited the court.
The judge gave 12 reasons in the 148-page judgment why the MPs were responsible.
In the two counts of murder, she said the conviction was largely on the concept of dolus eventualis (the foresight or foreseeability).
“The inquiry is simple. Did the accused persons foresee the consequences of their action? Did they act recklessly despite foresight of the results of their conduct?” she stated as she referred to case law on dolus.
The judge said as a result of the erupted violence, the murders of Mntshali and Shongwe on June 26 pinned the legislators for dolus eventualis (direct intention).
“From the above therefore, the question becomes, did the perpetrator subjectively foresee the consequences of his unlawful conduct but was nevertheless reckless to its outcome?” She said dolus eventualis was more substantiated than dolus directus (the direct intention to kill) because they were not carrying any weapon to kill.
The judge said there were four undisputed grounds related to how those murders occurred. Firstly, was that Mtshali and Shongwe on count two and three, respectively, were at the scene at Nkwalini or Hillop, Mbabane, Hhohho region on June 29th 2021.
Secondly, she said it was also not disputed that the two were part of the protesters on that day.
Thirdly, she said one of them died as a result of a vehicle passing through that route and fourthly, she said “the accused arraigned under counts two and three were not at the scene of the accident or part of the protesters.”
The judge said the evidence by Constable Fano Hlatshwako where he narrated how the accident occurred and autopsy conducted by Dr R.M. Reddy, who showed the cause of death were injuries they sustained, was present. She said it was common cause that the two accused during cross-examination of the Crown’s witnesses were not pinpointed at the scene of crime when the two died.
Judge Dlamini said, however, they had foresight and that it was accompanied by another concept of volition (desire).
She said the volition characteristic was present when the accused consents to the consequences foreseen.
She also stated that the evidence by Sikhumbuzo Wesley Hlophe, an employee of Sincephetelo Motor Vehicle Accidents Fund, who was driving the car that hit the two was under attack on different occasions while on his official duty as the violent crowd kept demanding money to let him pass. “He was also assaulted and drove away but found a roadblock,” reads the judgment.
The group took his employer’s cell phone and E400.
Of these cases, the judge said evidence of violence was reported all over the country. The police had testified that at the Manzini Police Station 85 cases of criminality were reported, in Matsapha 158, Malkerns 29, Mafutseni seven, Bhunya eight, Mankayane 10, and Mliba three while there were four at Sidvokodvo.
On the charge of terrorism, Judge Dlamini said the duo defied the banning order that was issued by the then acting Prime Minister, Themba Masuku, in June 2021.
She said with defiance, violence had erupted on the days petitions were delivered and said the legislators had denied that there was violence when the petitions were delivered.
She further stated that traces of the violence were also pre-petitions’ deliveries. The judge said at the memorial service of Thabane Nkomonye on May 21, 2021 the crowd was violent.
“From the speech, accused No.1 (Mabuza) mentioned that there was a form of violence when they were at the memorial service of Thabani,” she said, adding that he even attested in one of his speeches calling for justice for Thabani.
Mabuza had stated that violence erupted because the police had shot one protester in the eye and people reacted by hijacking a truck full of sugar. She also said the legislators denied that there was violence on the days the petitions were delivered but failed to substantiate it.
“Accused No. 1 (Mabuza) flatly denied any form of violence emanating from the delivery of petitions,” she said, adding that even with a witness testifying on the MPs’ favour reserved responding to why the acting prime minister was said to have denied the people their constitutional right. The judge also said the legislators went on to say that they made utterances that the government was unconstitutionally constructed.
The judge said it was surprising why they would conclude in their speeches that the government was made up of people who ‘descended down like rain and God.’
“What is clear however, is that by his very speech at SnB Restaurant on 2nd June, 2021 and at Summerfield on 24th June, 2021, he had no basis to so express to the nation.
To further say that the acting prime minister’s had no authority to promulgate the Banning Order in light of Legal Order Notice No. 189 of 2015 was damning,” Judge Dlamini said. She said the words were inciting. She added that it was one thing to be critical of the government. However, she said, it was another where the government engages to ensure safety and security of its people whereby an individual could stand up and inform the nation not to abide by that ban for the reason that the government is not for the people.
“These words and many others uttered by accused No.1 planted acrimony among the listeners and the government. Violence as a result of such words therefore became apparent,” she stated. “His call that there should be no violence was muzzled by such utterances, or should I say, that call not to engage in violence in light of such words in his speech was indicative that he appreciated that the people might turn to anger and thereby cause violence.
His denial in his defence of any violence before the Banning Order finds no support,” the judge added.
She also said the legislators deliberately accepted the petition fueling the violence. Furthermore, Judge Dlamini stated that the legislators were in proximity with the gathering and their conduct in those gatherings were testament of the defiance of the banning order.
She said the Speaker of the House of Assembly on June 21, 2021 made an announcement that the petition deliveries were ‘unSwazi’ and that they resulted in cyber-bullying and harassment, calling for proper channels of addressing issues.
“The Hansard reflects the violence experienced during petition delivery. The bullying and harassment are a form of violence.
“The evidence presented therefore dictates that the two accused persons arraigned before court cannot escape counts two and three,” Judge Dlamini said.
‘Mabuza advocated for system where king has no power’
High Court Judge Mumcy Dlamini said when delivering her conviction judgment on two Members of Parliament (MPs) said Mduduzi Bacede Mabuza is on record on June 5, 2021 advocating for a system of government where His Majesty King Mswati III has no power in politics.
“From the speech by the accused No.1 (Mabuza) as extracted from the video, it is clear that accused No.1 advocated for a system where the King has no power in politics and he was selling this idea to the people that were present at Hosea Constituency,” Judge Dlamini said.
The judge took a swipe at Mabuza for referring to the Constitution as ‘just like papers in his boot, which could be torn.’
She said he was not a student of law to determine that as to a law student a constitution has value more than just a paper.
She also said Mabuza informed the Hosea constituents that the Constitution could not be above them following that it was a piece of paper.
“By any stretch of imagination, the Constitution cannot be below the citizens,” said the judge, asking what Mabuza meant when conveying this to his listeners.
The judge said on June 18, 2021 Mabuza and his co-accused had a meeting on the elected prime minister as the main agenda. The judge also said the mantra that all petitions that were delivered before they were banned had as one of the main issues the issue of an elected prime minister.
“He went into finer details on how the process would be.
He expressly called for the exclusion of royal kraals in the nomination of the prime minister, and referred to this as pure democracy,” Judge Dlamini said.
How did they intend to free Emaswati?
HIGH Court Judge Mumcy Dlamini has found that either of the two alternatives to the charge of contravening Section 5(1) of the Suppression of Terrorism Act of 2008, the legislators were guilty.
While count one states that the duo committed or attempted to act or threaten to commit terrorist acts but encouraged people in public statements to disobey the lawful banning by the government of the delivery of petitions and or to reject the appointment of the acting prime minister, there were two alternative charges.
The first alternative was that the duo contravened Section 4(a) read with Section 3(1) (a) to (e) of the Sedition and Subversive Activities Act of 1938.
They were indicted for that on June 2, 2021 at or near Summerfield, they committed seditious acts by encouraging for civil disobedience the lawful banning order issued by the government. The second alternative states that on the same date at the same venue the duo encouraged people to reject the appointment of the acting prime minister and by so doing uttered seditious words. In the charge the Crown relied on audio visual recordings that were played in court during the trial. The judge said the speeches that were partly about the call for an elected prime minister were suggested by the MPs that they ‘could only be cured by a review of the Constitution.’
“Accused No. 1 also pointed out that they will fight and that ‘Swazis will be free.’
The question, which needs interrogation is what exactly they meant by ‘review, fight and Swazis will be free?’ How did they intend to achieve the ‘review’ or the ‘fight’ in order to have the Swazis free’?” the judge expressed. The judge further noted that from accused 1’s speech on June 5, 2021, it was clear that he advocated for a system where the King has no power in politics and he sold the idea to the people who were present at the constituency. She said this was gathered from the extract, “We are not fighting the monarchy, but want the power to run ourselves as a government in us. Just like all countries of the world.”
Judge Dlamini said Mabuza was direct on this point, as he later stated, “what we are saying is let the monarchy be at a distance (akakhweshe) or there. Let the people be there or aside or separated so that we will be able to respect our monarchy.”
The judge said from the last sentence, it is clear that Mabuza informed people from Hosea that the King cannot be respected as long as he had a hand in politics.
She said this point was in line with the contrast by Mabuza as he stated earlier, “Queen Elizabeth does not concern herself with politics. She sits like the queen of England and is respected by all the people in England. She goes further to be respected by presidents of the world.”
The judge said that was the gist of accused no.1 speech, which could not be disputed following that when the video was running in court, he could identify himself as the one speaking without his lawyers’ assistance. “I must, however, point out that nothing much could be drawn against accused no.1 in so far as count one and the two alternative charges are concerned from this alone. However, what raises the eyebrows against accused no.1 speech is what he says consequent to the above. ‘He stated apparently in response to a question posed by one of the attendees who enquired on what then would happen to the Constitution as it recognises the offices of the impugned appointees,” said the judge.
She noted that the accused said: “The Constitution had been made by those who were present at that time. Today is the time when this paper is below us. It is not living in line with us.” “Let it be torn and let there be a fresh paper made. So that it can go in line with the Swazis. The paper that has been made by me cannot be above me. There are papers in my boot. I can tear all those papers because they are not above me. I am the one who is above the papers.”
The judge said such a speech leaves the hearer to wonder as to the manner in which Mabuza intended the Constitution to be torn.
“The benefit of doubting Mabuza is that he could mean that the Constitution ought to be amended. Such interference finds support from witness 39, who testified that accused No.1 spoke about Section 67 sub Section 1 of the Constitution and pointed out that it needed to be amended.” “The puzzle, however, does not end by the drawn inference. Accused No.1 referred to the Constitution as a paper just like his papers in his boot, which could be torn.” said the judge.
Mabuza acquitted of one charge
HOSEA Member of Parliament Mduduzi Bacede Mabuza was acquitted and discharged of one count.
He was discharged and acquitted for the charge of contravening COVID-19 Regulations of 2020 under the Disaster Management Act of 2006 committed on June 5, 2021 at or near Hosea in the Shiselweni region.
According to the charge sheet, he failed to keep a register as required by the Regulations for any gathering and sanitise participants in a gathering he had convened.
Giving her reasons why Mabuza was acquitted, Judge Dlamini said there was no evidence that Mabuza organised a meeting. She also said Mabuza did not ‘convene’ the gathering.
Judge Dlamini said evidence shows that Sibusiso Vilane testified in court that he was the organiser of the meeting which took place at Hosea on that day whereby Mabuza was the main speaker. The judge said the second reason Mabuza was acquitted was because he was not the convener.
“Accused No.1 was charged for convening and not being in charge of the gathering,” Judge Dlamini said.
The State alleges that the following three events contributed to the June 2021 unrest
n A gathering on 5 June 2021, where one of the MPs allegedly suggested that there be a democratically elected prime minister, rather than one appointed by the King.
n A meeting at a restaurant, where one of the MPs allegedly encouraged sending petitions to tinkhundla centres.
n A speech in which one MP allegedly said “Akulalwa Namuhla” (roughly translated to “not sleeping today”).
How did Mabuza, companions hope to have Constitution torn?
The judge said from the SnB Restaurant speech, the agenda for the press conference was clarified by accused no.1 saying it was about the prime minister.
She said accused No.1 clearly pointed out that it was them vis, accused No.2 and Magawugawu that ‘started the talks on this issue.
“The issue was about the election of the prime minister. Accused no.1 pointed out that the purpose of the meeting was further to respond to questions raised by the public on their call for an elected prime minister.
“The main question posed by accused no.1 was on how different would an elected prime minister be to an appointed one? Accused No.1 pointed out that an elected prime minister would be fully democratic as opposed to the oher, who accused no.1 described as ‘half democratic’.”
The judge said accused No.1 further pointed out that there were different views. The first came from the minority.
“He defined the minority as those holding higher positions. He pointed out that the minority held the view that the King ought to have a hand in the issue of the prime minister. Relating to the second group, which he described as the general public, accused No.1 pointed out that the group was posing a question on how the elected prime minister would be different.”
She said accused No.1 revealed that many petitions had already been delivered in the various constituencies and further stated that all the petitions had one common topic, the demand for the election of the prime minister.
“I must pause here for a second and enquire how accused no.1 knew about the contents of the petitions as PW16 undisputed testimony under cross-examination was that Parliament took a resolution that the petitions delivered should first be scrutinised by the attorney general for purposes of classifying the issues before tabling them,” said the judge.
She further said the witness pointed out under cross-examination again that as at date of his testimony before the court, the petitions were still in the office of the attorney general.
They were not submitted in Parliament.
“That as it may, what is important at this state is the speech by accused No.1.”
The judge stated that accused No.1 embarked on crushing the view, by his own speech, of the minority.
She said he pointed out that he was an MP by the majority will of the people of Hosea. “He was never thereafter chosen among four people as suggested by the upper class.
He expressed ‘that is why the people of Hosea are proud of him (himself) today. Because they know that even if he can stray, he has been put there by us. Even if he can talk out of order, he is there through us.
Even if he would become whatever, he went there through us. We have become the majority, us who have sent him there.”
The judge noted that accused No.1 then expressed his own election; “that is fully-fledged democracy from the bottom constituency up until the election of the MP. He then advocated for a similar modus-operandi in the process of the prime minister she stated.
“He went into finer details on how the process would be. He expressly called for the exclusion of royal kraals in the nomination of the prime minister. He referred to this as pure democracy.
“Accused No.1 informed the listeners that he was determined to defend what he was advocating for, no matter the circumstances. He then proceeded ‘there are two things that we need to know that rule the country of Eswatini right now.
There is serving a person and fearing a person. I’m not the person who wants to serve a person in fear’.”
The judge said having noted the speech by accused, the question still remained, “How did accused No.1 and his companion hope to have Constitution torn?
“Did he intend to go to Parliament to tear it as it were? Or put directly, how did accused no.1 and accomplices intend to enforce the idea of doing away with the appointees or appointed prime minister?”
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