JAILBIRDS: Human Rights Lawyer Thulani Maseko and The Nation magazine Editor Bheki Makhubu were yesterday taken back ‘home’ - jail. (Pics: Mphikeleli Msibi)
THE Nation Magazine Editor Bheki Makhubu and human rights lawyer Thulani Maseko have been re-arrested.
Makhubu was arrested at his residence at Dalriach Township Mbabane while Maseko was rounded up an hour later.
They were subsequently taken to the Mbabane police station where they have been booked.
This follows warrants of their re-arrest issued by High Court Judge Mpendulo Simelane yesterday at around 2:30 pm after failing to appear in court for remand, as per an order he issued on April 1.
They were released from custody on Sunday afternoon after Judge Mumcy Dlamini had set aside warrants of arrest issued by the Chief Justice Michael Ramodibedi against them for contempt of court charges.
Judge Simelane said he had expected the duo to be present in court since they were in custody on the strength of the remand.
“I will not allow a situation where I’m being treated as a stooge,” he said, adding that he took strong exception to that attitude.
“I will not allow a situation where people do things as they please. Court orders have to be respected. In so far as this matter is concerned, your clients (accused persons) are supposed to appear before court. Where are the accused persons?” he asked Makhubu and Maseko’s lawyers.
Judge Simelane lamented that there was no liberation warrant before court authorising their release from the custody.
“May I see the liberation warrant,” he said.
“There is also no order in the judgement issued by my sister Judge Dlamini releasing the accused persons from custody.
“The judgment only mentions that the application succeeds and that the warrants are set aside. Judge Dlamini’s judgement is not reflective of the order for their release. I cannot rely on an assumption.”
In response, Advocate Lucas Maziya explained that the effect of Judge Dlamini’s judgment meant there were no longer criminal charges against Maseko and Makhubu since the warrants of arrest together with indictment were set aside.
“Therefore, the accused persons were not expected to be before court since there are no longer charges against them,” he argued.
“It (Judge Dlamini’s judgment) does not have to expressly say that. Everything collapsed when the warrants were set aside. It’s like there is no charge against them as we speak,” added Maziya.
Advocate Maziya submitted that Judge Dlamini’s judgment was binding on him (Judge Simelane).
Delivering the ruling Judge Simelane said it was clear that after Judge Dlamini’s verdict had been delivered an appeal was noted, which automatically stayed the execution of the judgment.
He said no liberation warrant was produced explaining how Maseko and Makhubu were released from custody
“I had issued an order on April 1, 2014 remanding the accused persons in custody until April 9, 2014, which is today (Wednesday),” he said.
He then issued the warrants of arrest and postponed the case sine die (indefinitely) pending their execution.
In the appeal noted on Monday by the Chief Justice against Judge Dlamini’s verdict, he argues that his decision could only be overturned by the Supreme Court
The CJ further contends the following;
a) The Judge a quo (Judge Dlamini) erred or misdirected herself in dealing with the merits of the case whereas the court was called upon to deal with jurisdiction which was either to be upheld or dismissed.
b) The Judge a quo misdirected her in failing to appreciate the basic fundamental principle that contempt of court is sui generis and it does not fall under the Criminal Procedure and Evidence Act 67/1938. The Court is entitled to devise its own procedure in self-protection.
c) The Judge a quo misdirected herself in the circumstances in setting aside the respondents’ warrant of arrest.
d) The Judge a quo misdirected herself in dealing with the evidential documents which were not part of the record. In particular the letter written by the applicants’ attorneys requesting a full bench which was never brought to the attention of the respondents.
e) The Judge a quo misdirected herself in inviting the second applicant’s counsel to deal with issues of merits when it was a point of law of jurisdiction that had to be dealt with.
f) The Judge a quo erred or misdirected herself in assuming the review jurisdiction whether declaratory or not in the matter contrary to the mandatory provisions of Section 195 of the Constitution of Swaziland in as much His Lordship the Chief Justice sitting in the High Court is not an inferior court.
g) The Judge a quo erred or misdirected herself in sitting in judgment over the decision of the Chief Justice
In her written judgment, Judge Dlamini observed that for a warrant of arrest to be competent there ought to have been a written application as per section 31 of the Criminal Procedure and Evidence Act.
She said in the Maseko and Makhubu’s warrant there was never such.
Judge Dlamini further said the affidavit used in support of the warrant of arrest issued by the CJ were competent in law following that they were commissioned by an officer of the High Court, who is directly under the CJ’s administration.
Maseko and Makhubu were arrested on May 18 and later arraigned before the CJ in his chambers.
They are facing contempt of court charges in relation to articles published in The Nation Magazine condemning the arrest of Government Chief Vehicle Inspector Bhantshana Gwebu, when the matter was still pending in court.
Gwebu arrested in January for having detained an unauthorised government vehicle in which High Court Judge Esther Ota was being chauffeured near Sifundzani Primary School. Gwebu is also facing contempt of court charges.
Meanwhile, Lawyers for Human Rights (Swaziland) have called an urgent meeting to be held today at La Casserole in Mbabane at 2 pm. The meeting was announced by the organisation’s Secretary General Sipho Gumedze.
Arrests effected despite filing of notice of appeal
BHEKI Makhubu and Thulani Maseko have filed a notice of appeal against the warrants of arrest issued by High Court Judge Mpendulo Simelane yesterday at around 2:30 pm.
The suspects are appealing on the following grounds;
a) The court a quo (High Court) erred in law and in fact in holding that when the appellants were released from custody on 6th April, 2014 the Crown had already noted an appeal.
b) The court a quo erred in law and in fact in holding that the noting of the appeal by the Crown on 7th April, 2014 automatically stayed the executed of Dlamini J’s judgment on April 6 in as much as the judgment had already been executed at the time of noting the appeal.
c) The court a quo erred in law and in fact in holding that the appellants were expected to be in court on the 9th April, 2014 even thought the indictment on the strength of which they were to be before court had been set aside.”
The appeal was served at the High Court and the office of the Director of Public Prosecutions at around 4 pm.
Lawyer Mandla Mkhwanazi explained that the effect of the appeal meant that the status quo remained or the warrants are no longer executable.
Makhubu, Maseko flee High Court premises
THE Nation Magazine Editor Bheki Makhubu and human rights lawyer Thulani Maseko yesterday fled the High Court at 11am after rumours started circulating they were about to be re-arrested.
The suspects had appeared in court for a remand when their lawyers briefed them about the possibility of being re-arrested whilst Judge Simelane was engaged in another matter.
Makhubu and Maseko had been sitting patiently at the gallery awaiting Judge Mpendulo Simelane to finish reading civil case judgment involving another matter when they were alerted about the secret move to re-arrest them. At the commencement of their case, Judge Simelane enquired from Advocate Maziya about the whereabouts of the accused persons.
In response, Advocate Maziya said they were not expected to appear before court on the strength of Judge Dlamini’s judgment setting aside the warrants of arrest issued by the CJ.
He said the charges against the accused persons no longer existed.
Judge orders DPP to probe duo’s release from prison
HIGH Court Judge Mpendulo Simelane issued an order directing DPP Nkosinathi Maseko to investigate the circumstances surrounding the release of Bheki Makhubu and Thulani Maseko at the Sidwashini Correctional Services without a liberation warrant.
Judge Simelane said there was no liberation warrant produced before court indicating their release from custody.
“I will also need a report,” remarked Judge Simelane.
The DPP made an undertaking to get to the bottom of this matter and further compile a report.
“I have also tried to get the liberation warrant to no avail,” he said.
The DPP said Judge Dlamini’s judgment was not final hence notice of appeal was filed timeously.
DPP Nkosinathi Maseko taken aback
DPP Nkosinathi Maseko said it was just surprising how Thulani Maseko and Bheki Makhubu were released from custody without either a liberation warrant or court order.
“The accused persons were so lucky to be released in the manner in which they were released,” he said. The DPP argued that even though the accused persons were already out of custody, he expected them to honour the remand date by appearing before court. “They were supposed to be present before court notwithstanding that they were released on Sunday,” he said.
“I’m really taken aback. I would have expected the accused persons to go into the accused dock. Surprisingly, they were here in the morning.”