Times Of Swaziland: ‘GAWUZELA’S SON, CO-ACCUSED  CLAIM CJ INTERFERING WITH FILE

‘GAWUZELA’S SON, CO-ACCUSED  CLAIM CJ INTERFERING WITH FILE
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Mbongiseni Ndzimandze on 15/01/2024 18:30:00


MBABANE – Zweli Simelane, the son of Mduduzi ‘Gawuzela’ Simelane and his
co-accused brother, Jabulani Simelane, claim that Chief Justice (CJ) Bheki
Maphalala is interfering with their file.
Zweli and his co-accused brother, Jabulani, who is a member of the Swaziland
Liberation Movement (SWALIMO), are facing charges under the Suppression of
Terrorism Act, 2008. The duo made the allegations of interference against the CJ
in their papers where they are seeking an order for the recusal of Judge Justice
Mavuso from presiding over their bail application.
“It is our humble submission that, in the present case, justice will not be
manifestly and undoubtedly seen to be done. There is an ostensible interference
by the chief justice in the administration of our file,” submitted the duo.
They averred that the removal of their file from the duty judge assigned to do
bail applications during the week ending on December 22, 2023, and it being
reassigned to Judge Mavuso was really unsettling.
“This we say, bearing in mind the fact that the allegations levelled against
us are in connection with civil unrest, which prevailed in Eswatini in 2021,
where various homesteads, infrastructure and property were destroyed,”
contended the accused persons. They highlighted that it was a notorious fact
that the CJ fell victim to these arson attacks when his homestead in Hlatikhulu
was burnt down and livestock shot dead.
According to the accused persons, it therefore gave rise to a reasonable
apprehension, on their part, that justice would not be seen to been done in a
case where the CJ, as a victim of the civil unrest, had his hands all over their
file in an unusual manner. The Simelane brothers brought it to the attention of
the court that their file had been removed from two judges, to be specifically
assigned to Judge Mavuso.  They pointed out that the file was removed from Judge
Bongani Sydney Dlamini and further taken from Judge Zonke Magagula to be
assigned to Judge Mavuso.
Giving background of the matter, the accused persons told the court that they
made their maiden court appearance before Judge Dlamini (Bongani) on March 13,
2023, who remanded them in custody pending trial. They alleged that immediately
upon adjournment after the remand appearance, they were served with an order for
the detention of their items and same was issued by Judge Dlamini on an ex parte
basis on the same day, despite that their attorneys were present in court.
Detention
The duo said they had an issue with the detention order and this resulted in
them instructing their lawyer to apply for the release of their items. The
application for the release of the items, according to the accused persons, was
then due to return to court on March 17, 2023. “On March 17, 2023, the matter
came back before Judge Dlamini, for us to make our application for the release
of our detained property. While Judge Dlamini was sitting, the deputy registrar
of the High Court entered the courtroom through the entrance reserved for judges
and whispered to the judge,” alleged the Simelanes. They alleged that no one
heard what the deputy registrar said to the judge. They claimed that after the
adjournment of  20-30 minutes, they were taken aback to see Judge Mavuso
entering the courtroom to take over the case.
The accused persons submitted that, in observance of the court decorum, their
attorneys applied to address the judge (Judge Mavuso) in his chambers.  They
submitted that it was in the chambers that their lawyers expressed their
disquiet about the substitution of Judge Dlamini for Judge Mavuso.
“In chambers, our attorney informed Judge Mavuso that there was apparent
interference by the chief justice in the administration of the file for the
matter.  Judge Mavuso assured our attorneys that he was under no particular
instruction from the chief justice and further assured our attorneys that he
would be independent and impartial,” submitted the pair.
Confirmatory
Lawyer Dumisani Hleta deposed to a  confirmatory affidavit where he stated that
on December 21, 2021, he was requested by his colleague Thabiso Mavuso, counsel
for the accused persons, to file a bail application on their behalf.  He alleged
that he was assisted by the assistant registrar, who informed him that the
instruction from the CJ was that the bail application should be heard by the
same judge before whom the accused persons were first remanded.  Hleta alleged
that since he was not privy to the information, he contacted Thabiso to enquire
from him and he (Thabiso) told him that the matter first appeared before Judge
Bongani Sydney Dlamini, but was later given to Judge Mavuso. He alleged that he
told Thabiso that the assistant registrar had told him that the bail application
would be heard by Judge Mavuso as per the CJ’s instructions.