Times Of Swaziland: THULANI CHALLENGES CJ ON ARREST

THULANI CHALLENGES CJ ON ARREST
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BY MBONGISENI NDZIMANDZE  on 29/03/2014 10:19:00


MBABANE – Incarcerated Human Rights Lawyer Thulani Maseko has taken the chief
justice to court where he is seeking an order discharging the warrant of arrest
that he issued against him.
He alleged that constitutionally, the chief justice does not have the power to
issue an apprehension warrant and his conduct of issuing the warrant against him
was unconstitutional, unlawful and irregular.
These are allegations contained in an affidavit whose veracity is still to be
tested in court and the respondents are yet to file responding papers. “As
opposed to the first respondent (Chief Justice), it is the Mbabane
Magistrate’s Court that has powers and authority to issue a warrant of arrest
in the circumstances under which I was arrested and detained. This position is
set out in Section 33 (1) of the Criminal Procedure and Evidence Act, 67 of
1938.
Section 33 of the Criminal Procedure and Evidence (CP&E) Act provides that; any
magistrate may issue a warrant of any person or for the further detention of a
person arrested without warrant on a written application subscribed by the
Attorney General or by the local public prosecutor or any other commissioned
officer of police setting forth the offence alleged to have been committed and
that, from information taken upon oath, there are reasonable grounds of
suspicion against such person or upon information taken upon oath, there are
reasonable grounds of suspicion against such person, or upon information to the
effect of any person made on oath before the Magistrate issuing the warrant:
Provided that no magistrate may  issue any such the warrant except when the
offence charged has been committed within his area, at the time when it was
issued, known, or suspected on reasonable grounds to be within his jurisdiction
”.
Maseko who is represented by Senior Lawyer Mandla Mkhwanazi, further submitted
that having regard to the provision of the CP&E it was clear that it was the
magistrate within whose jurisdiction the alleged offence took place and the
alleged offender is suspected to be within that particular magistrate’s
jurisdiction has legal authority to entertain and determine a written
application for the issuance of warrant of arrest not the chief justice.
“In any case the power and authority to remand suspects vests with magistrates
court in terms of the provisions of the CP&E. It is therefore respectfully
stated that the Chief Justice, in issuing the warrant against me acted ultra
vires and in violation of the provisions of the Constitution and Section 31 of
the CP&E,” he stated.
He further alleged that the conduct of the chief justice was also ultra vires
the provisions of Section 157(1) of the Constitution of Swaziland.
Maseko was arrested together with The Nation Magazine Editor Bheki Makhubu and
they are facing two charges of contempt of court. The contempt charges emanate
from articles which appeared in The Nation Magazine where the two were
questioning the rationale behind the arrest of Chief Government Vehicle
Inspector Bhantshana Gwebu.
The warrant for their apprehension was issued by the Chief Justice. In his
application filed under a certificate of urgency yesterday, Maseko is also
seeking an order declaring his detention irregular and unlawful.
Other respondents in the matter are the Director of Public Prosecutions,
Attorney General and the Government of Swaziland. He submitted that on Monday,
March 7, 2014 at around 6pm he was arrested by the police while at his offices
at Swaziland Plaza in Mbabane.
He said he was, thereafter, detained at the Mbabane Police Station. “At the
time of my arrest the said police officers informed me that they were
apprehending me and I was duly served with the warrant. On Tuesday, March, 18,
2014 I appeared in the chambers of the Chief Justice for my first remand
whereupon I was summarily remanded in custody until March 25, 2014,” he said.
He alleged that at the Chief Justice’s chambers, the prosecution never applied
that he be remanded in custody but the Chief Justice mero mutu (out of his own
volition) remanded him into custody.
Maseko stated that he was currently incarcerated at Sidwashini Remand Centre
pending his next court appearance. “I wish to state that I was not served with
any written application seeking an order that I be arrested or apprehended. As a
matter of fact no written application as envisaged by Section 31 of the CP&E was
ever made,” he alleged.
He submitted that he was, therefore, not in court to oppose or support the said
application and since this was an application with serious implication of
depriving him his liberty he ought to have been served with the application.