By Sibusiso Gamedze | 2018-02-15
YESTERDAY, High Court attendants were treated to yet another spectacle when renowned criminal defence Advocate Mduduzi “Tsotsi” Mabila was involved in a verbal showdown with Judge Nkululeko Hlophe, again.
Judge Hlophe almost lost his cool when Advocate Mabila made submissions based on law before leading accused number one Mfanukhona “Kakona” Dlamini in his evidence, something which did not go down well with Judge Hlophe.
“Advocate Mabila we have not reached the submissions stage, and now you seem to be making submissions based on the law. Please do not play to the gallery, you are now causing delays in the matter, shelve this, we will deal with at a later stage,” said the Judge.
Hlophe further questioned if the advocate was deliberately trying to confuse the court with his three pronged approach which the judge slammed, as it was not the proper procedure to be followed in such matters.
“Is this deliberate? Because I am now confused by your approach and you always want to be the last one to speak,” the judge said.
What seemed to have caused the issue was that the advocate started by saying that he would tackle the matter on behalf of his client in a three-pronged approach.
That is where he would start by applying for the first accused’s acquittal and discharge in terms of Section 174 (4) of the Criminal Procedure and Evidence Act in relation to the statutory offences.
Thereafter, he would then deal with the alternative charges in the indictment sheet as they were common law charges relating to theft of motor vehicles where there was a possibility of leading the first accused in his evidence.
Lastly, he would then make submissions based on law, which would require him to argue the law and citing of relevant cases at the close of the defence case.
According to the advocate, his client was charged under the local Theft of Motor Vehicles Act, whereas the vehicles he is alleged to have stole were taken in South Africa, which falls outside Swaziland’s criminal jurisdiction.
“My Lord it is trite law that the statutory laws of Swaziland do not apply outside its territorial jurisdiction, they only apply within the four corners of this sovereign state,” argued Advocate Mabila.
He said it was on that basis that his client could not be convicted under the local Theft of Motor Vehicles Act, he was of the view that had the cars been stolen in Swaziland, it would therefore be a different kettle of fish altogether.
The advocate said if the statute was to apply in the theft of a motor vehicle, extra-territorially should be expressly stated in that statute.
He made an example with the People and Human Trafficking Act which according to him applied globally irrespective of where the unlawful act occurred.
“My Lord the People and Human Trafficking Act expressly states that a person can be charged under the aforementioned Act whether the victim was trafficked from or to China or Swaziland,” agued the senior counsel.
He said the Theft of Motor Vehicles Act had no such provision or clause and it was for that reason why his client was not in contravention of the above Act.
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