Times Of Swaziland: ACCUSED LAWYER WANTS ANOTHER JUDGE FOR CASE

ACCUSED LAWYER WANTS ANOTHER JUDGE FOR CASE
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Mbongiseni Ndzimandze and Kwanele Dlamini on 20/04/2023 08:47:00


MBABANE – He wants another judge for his case.
This is the lawyer who is accused of sexually violating his children, cousin and
helper. He contends that the presiding Judge, Sabelo Masuku, is the son of
Deputy Prime Minister (DPM) Themba Masuku. His contention is that, besides the
judge being a son to the DPM, the latter made some statements, which he claimed
influenced his arrest and subsequent prosecution.
On Tuesday, *Musa’s representative, Khumbulani Msibi, told the court that his
client intended to file an application for the recusal of Judge Masuku. 
Together with Crown Counsel Mncedisi Dlamini, Msibi approached Judge Masuku in
chambers, where he moved the recusal application. The procedure is that the
party who seeks the recusal of a judicial officer first makes the application in
chambers.
Recuse
If the judicial officer refuses to recuse himself from the matter, the party
seeking the recusal proceeds to file a formal application, stating their reasons
to want the judicial officer to be removed. In chambers, the judge was informed
that by virtue of the parent-and-child relationship between him (judge) and the
DPM, an ordinary bystander watching from afar would not have confidence in the
outcome of the trial.  The judge was also informed that in other words, justice
would not manifest and undoubtedly be seen to be done. He said although his
client did not have evidence of interference by the DPM in the trial, by virtue
of their relationship, the judge may be unconsciously influenced to act on the
DPM’s sentiments. The judge, on the other hand, said it was unfair because, as
a politician, the DPM talked politics on any subject anytime, every day. He
wondered if that meant that he had to recuse himself from every case the DPM
made comments on.
When Msibi and Dlamini returned from seeing Judge Masuku in his chambers, Msibi
applied that the trial should be deferred to another date. In the meantime,
Msibi applied for leave to file a formal application for the recusal of Judge
Masuku. The formal recusal application on notice of motion will be filed
tomorrow. Msibi said they were entitled to be heard on the application. Dlamini
told the court that the Crown was opposed to the application for the recusal of
Judge Masuku. The Crown will advance its reasons for the opposition when
responding to the application yet to be filed. Judge Masuku said there had been
an indication (in chambers) that the accused’s attorney wanted to apply for
his recusal. He stated that the normal course was that counsel approached the
judge in chambers. The judge also said it was better that the application be
done on notice of motion, since the Crown was opposed to it.
The Crown will file its answering papers next Wednesday.  Msibi said he would
file a replying affidavit on May 2, 2023 and heads of argument, and other
relevant documents, on May 5, 2023. The Crown will file its heads of arguments
on May 10, 2023. Since the High Court will be on recess from April 28, 2023, the
recusal application will be heard on the next session, on a date yet to be
allocated. The accused lawyer, who was dressed in a black suit and a striped
white shirt, was in leg irons when he arrived at the High Court.
Pictures
The lawyer almost lost it when some journalists took pictures of him as he told
them to ask for permission to photograph him.  His sister also did not take
kindly to the pictures of the accused being taken by journalists.   The
attorney, who is detained at Zakhele Remand Centre, remained locked in
discussion for some time with his legal representative after the court had
adjourned indefinitely. His relatives, including the children he is accused of
sexually violating and their mothers, were present in court. The helper who was
also allegedly impregnated by the lawyer was also present with her child. Among
them were other witnesses, one from the Republic of South Africa (SA), since the
trial was supposed to start on Tuesday. Members of the People’s United
Democratic Movement (PUDEMO) and Swaziland Youth Congress (SWAYOCO) were also
present to observe the proceedings.
PUDEMO Deputy President Wandile Dludlu addressed members of his party and
SWAYOCO after the court proceedings and informed them that they had previously
delivered a petition to the Commission on Human Rights and Public
Administration/Integrity, which was headed by Masuku (now judge). Dludlu said
the then Masuku-led commission compiled a list of individuals who were killed
during the political unrest and presented the list to the State. He alleged that
the list was used by State agents to visit homesteads of the people who were
killed and those who sustained permanent injuries. “You can see the kind of
judge we are dealing with here. That is why you must take this matter very
seriously,” said Dludlu. The accused attorney is still in custody after Judge
Zonke Magagula dismissed his application for bail in October 2022.
The lawyer, whose identity will not be revealed to protect the complainants,
subsequently filed an appeal against Judge Magagula’s decision to dismiss his
application for bail. One of the reasons for dismissing his application was that
he knew the complainants in the matter and was likely to interfere with them.
Removal
Meanwhile, the Department of Social Welfare was granted an order by the Mbabane
Magistrates Court, for the removal of the lawyer’s four-year-old daughter and
another from his homestead. The department had filed the application after
making an assessment of the living conditions at the lawyer’s homestead and
the court granted the order that the children be removed to a place of safety.
The four-year-old child and the other, who was aged 17 years, were removed from
the homestead of the lawyer, as per the order.  The involvement of the
Department of Social Welfare officers in the matter, regarding another minor who
was allegedly sexually violated by the lawyer, was at the instance of a
prosecutor, who is related to the child.
One of the abused children told the police that she tried to commit suicide
several times and another had been removed from the lawyer’s homestead to a
safe house. This publication established that the lawyer allegedly took some of
the children to SA for abortion procedures once they fell pregnant. It has been
gathered also that one of the children allegedly fell pregnant about four times.
One of his daughters, his niece and a helper, allegedly gave birth to the
attorney’s children after failed abortion attempts at his instance.  The
minors were allegedly sexually abused by the lawyer for years, beginning from
when some of them were as young as 12 years old. One of the abused children now
works for one security services and another is a studying in SA.
Investigation
An investigation by this publication established that members of the community
where the attorney resides, who were aware of the alleged sexual abuse
experienced by the children at the hands of their father, were enraged that
nothing was seemingly being done to the lawyer. The community members were said
to be contemplating taking the law into their own hands, due to the snail’s
pace at which the matter was being addressed. One of the children, *Lungile,
informed the police that ‘everyone at home was blaming me for having sexual
intercourse with my father, as if it was my fault’. She told the police that
she stayed with her father, stepsister, her brother and a helper in 2006, when
she was doing Form I and was 12 years old. She said her stepmother stayed in
another town, where she was employed and she would visit them on weekends. In
the same year, according to Lungile, the lawyer began touching her
inappropriately and sexually abusing her and her aunt, who was a year older than
her. *Not real names to protect complainants