I WOULD HAVE FREED INCARCERATED MPS

Pity Her Lordship Justice Mumcy Dlamini is not me. If she were, then she would be a journalist. And she would have the privilege I’m about to exercise; that of being the fourth arm of government. Since the three other arms are independent of each other, the fourth one isn’t. Instead, it can poke its nose into the business of all three and get away with it.

On Thursday, all eyes were on Judge Mumcy as she delivered judgment on the third bail application of the jailed Members of Parliament (MPs), Mduduzi Bacede Mabuza and Mthandeni Dube. All sorts of threats were issued against the judge, should she not grant bail to the MPs. It wasn’t the first time these threats were being made. On the two previous instances, the judge denied the MPs’ bail application, despite threats and all.

A lot has been said about why the judge denied the application. Some believe that the judge has been politically influenced not to grant the MPs the freedom they seek. No evidence of such perceived political influence has been presented by those who claim it. Hence it remains folklore. When one looks at the reasons the judge has given for denying the MPs the bail application on all instances, it is clear that she has relied on the evidence presented by both parties (MPs’ legal team and prosecution team).   

In the first application, the judge found that the MPs made a bare denial of the allegations raised by the prosecution; and the denial translated to no evidence to be put on the scales of justice against the evidence of the prosecution that was put on the same scales. Judge Mumcy said nothing controverted the evidence adduced by the prosecution ‘which was put on the scales by this court’.

She said the upshot of it was that the evidence by the prosecution that the MPs were a flight risk, posed a danger to national security, the public relied on the courts to protect it and their properties were accepted as likely or probable and not as a fact against the MPs because it stood unchallenged in law. This, in my books, points to shoddy job by the MPs’ legal team. I’ll return to this point later.

The MPs then filed a second bail application, which was again heard by Judge Mumcy.  In turning down this second bid, the judge cited the doctrine of functus officio, which prevents the reopening of a matter before the same court, tribunal or other statutory actor that rendered the final decision.

The judge found that the High Court was functus officio and proceeded to dismiss the MPs’ bail application. She stated that she was not the one who was functus officio, but it was the High Court. Judge Mumcy said from the second bail application, the MPs were not saying that they were filing the fresh bail application on grounds of such procedural aspects or that there were no findings by the court in the first bail application. Instead, they were contending that there were new facts.

Appreciated

In other words, as put by the judge, the MPs appreciated that the court accepted that the interests of justice did not favour their release based on the tilting of the said scales. Judge Mumcy cited the case of former Minister of Justice and Constitutional Affairs Sibusiso Shongwe, who was arrested for corruption-related offences. His bail application was dismissed by Principal Judge Qinisile Mabuza and he filed another application. The second application was dismissed by Judge Nkululeko Hlophe.

He was, however, released by the Supreme Court. In Shongwe’s matter, the Supreme Court said: “Where a court hearing a bail application has made specific findings refusing bail, an accused person is precluded from lodging a subsequent bail application before the same court on the pretext that new facts exist. The court is functus officio and has no jurisdiction to entertain the matter.”

Judge Mumcy also dismissed the MPs application. The MPs noted an appeal with the Supreme Court – the highest court in the land – where they raised six grounds why they believed Judge Mumcy misdirected herself when she came to the conclusion that the High Court was functus officio and, therefore, precluded from hearing their second bail application.

Even the Supreme Court dismissed the application by the MPs and fingers were pointed to, among others, their legal representatives for not follow basic procedures on bail application and condonation. So, in all fairness, claiming that Judge Mumcy is being politically influenced not to grant the MPs bail clearly doesn’t hold any water. We are yet to hear the judge’s reasons for denying turning down their latest bid for bail.

Had I been the one sitting on Judge Mumcy’s chair on Thursday, the two MPs would have slept at their homes that night. But again, Judge Mumcy is not me, and I’m not her. As a judge, she has to apply the law in reaching her decisions. I wouldn’t. My decision would have been political. Setting the MPs free would have calmed down the tense political atmosphere. Let us agree that granting bail to the MPs would take the wind off the sails of many, not all, political organisations and activists who have no meaningful activity except to wake up every day and shout ‘Free Bacede, Free Mthandeni, Free Our MPs’.

People have been killed, some seriously injured, public and private properties burnt down, schools closed, public transport brought to a halt, government and private operations disrupted, all in the name of the jailed MPs.
People are now living in fear as their lives are being threatened because they are accused of not supporting the jailed MPs. I would have brought all these to an abrupt halt on Thursday.

If truth be told, there are political organisations that had lost meaning and had become dormant to the extent of being forgotten that they even existed, but the jailing of the MPs caused them to be retrieved from the dustbin of history.
Others saw the jailing of the MPs as a meal ticket and formed new political parties, some of which quickly collapsed because the foundation for their formation was nothing but sinking sand.

Align

I would have also freed the MPs because it would be interesting to see if they would align themselves with any of the political organisations. I say this because all of the organisations claim that these are ‘our MPs’. Even those political organisations that have always boycotted participating in elections claim that these are ‘our MPs’.  This makes you wonder how these could be ‘our MPs’ when you do not participate in elections. That’s just me thinking. I intend to offend no one.

I still remember how veteran journalist; Bheki Makhubu said the political reforms that the MPs were calling for had been hijacked. His view was that some political organisation had taken over from the MPs who were the ones to set the ball rolling by raising, inside the august House, the issue of political reforms by calling for a change in the process of choosing a prime minister.

During a conversation with Gushwell Brooks on South Africa’s talk radio 702, Makhubu narrated the events starting from how the MPs started the whole debacle inside Parliament, before taking to the streets and essentially had this taken away from them.Today you no longer hear about the choosing of a prime minister, which the MPs were calling for. And this vindicates Bheki’s narrative, for which he was verbally attacked through social media platforms. Let me not digress. The nature of this article is that I would have given the MPs bail, for political reasons.

On June 15, 2020, daily newsletter The Conversation, published an article with the heading ‘How politics have played a big role in the release of prisoners’. The article mentions that releases are generally motivated by political rather than compassionate concerns. Governments, it says, often release prisoners when it’s beneficial to them or when they face pressure from activist organisations and the public. By controlling releases, leaders can try to deflect criticism, improve their image and reinforce their power.

It goes on to point out that the release of prisoners benefits the individuals affected, but it is often a selective and politicised act. When the article was written, the then US President Donald Trump had just pardoned high-profile offenders known to support him. What am I saying here: Simple; I wouldn’t have done what has not been done before had I released the MPs – if I were Judge. But I am not.

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