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TIMES BARRED FROM USING SOLIDARITY FORCES MEMBER’S STATEMENT

09/02/2023 14:01:00 Kwanele Dlamini

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MBABANE – The High Court yesterday issued an order stopping the Times of Eswatini from continuing to report on the statement that was recorded by Sibusiso Nxumalo.

Nxumalo who according to the indictment was a member of the Swaziland International Solidarity Forces is currently behind bars after he was arrested along with Muzi Mnisi. The duo is facing 38 charges of contravening the Suppression of Terrorism Act. In his statement, Nxumalo is said to have disclosed information relating to the operations of the Swaziland Solidarity Forces. The interim order by the court comes after the national commissioner of police moved an urgent application where he made a hue and cry about the publication of the contents of the statement.

Respondents in matter are African Echo (PTY) Limited, Times of Eswatini Managing Editor (ME) Martin Dlamini and the Times reporters who had been reporting on the story. In motivating granting of the order, the applicant (national commissioner) averred that the respondents were continuously publishing, circulating or distributing information which related to the ongoing police investigations into the offences committed under the Suppression of Terrorism Act. It was his contention that the publications were allegedly jeopardising the ongoing police investigation. He further alleged that the suspects were now evading the investigation due to the information contained in such publications.

According to the applicant, the police were allegedly unable to conduct their investigation as planned as the publications were allegedly, infiltrating the ongoing investigations, such that crucial evidence was being concealed. In the interim court order, the newspaper was interdicted and restrained from continuing to publish, circulate or distribute any information which relates to the ongoing police investigations into the offences allegedly committed by Nxumalo and Mnisi.

Terrorism

Senior Superintendent Clement Sihlongonyane who deposed to an affidavit narrated to the court that starting in the second half of 2021 and continuing into January 2023, the country experienced multiple acts of, among other offences, arson, murder of law enforcement officers and terrorism. He submitted that police investigations led to the arrest of six people including Nxumalo and Mnisi. The investigations, according to Sihlongonyane were still ongoing. “As part of the investigations the police compiled a docket in relation to the accused. The docket consists of statements of witnesses taken by the investigating officers, documentary exhibits, internal reports and memoranda and the investigation diary,” said the senior investigator. It was his contention that the respondent allegedly had privileged over the contents of the police docket.

According to the senior superintendent, the contents of the docket were of the basis on which the director of public prosecutions (DPP) decided whether there was a probable cause for the institution of a criminal prosecution against an accused person. He argued that, generally, it was only the accused, as part of his or her fair trial rights, who had a right of access to statements contained in the police docket. Senior Superintendent Sihlongonyane highlighted that the DPP on the strength of the information contained in the docket compiled by the police, had decided that there was sufficient evidence to set the law in motion against the accused. He said it pointed out that the accused had been indicted with 38 serious criminal charges and the trial was still pending at the High Court.

He related to the court that, on February 6, 2023 the Times of Eswatini prominently on its first page in a bold headline entitled ‘SOLIDARITY FORCES MAN TELLS IT ALL’.
Sihlongonyane went on to state that on pages 2, 3, 4, the respondents published articles which revealed the contents of informal admission made by one of the accused Sibusiso Nxumalo. The court was told that the articles appeared under the byline ‘Times Reporters’. He argued that these admissions were contained in the police docket.

Investigation

“The articles reveal the code named of the persons who are of interest to the police for purposes of investigation of serious criminal offences, including murder and offences under the Suppression of Terrorism Act. The admissions published by the respondent are items which had not been presented in court and the accused have not yet pleaded,” contended the senior detective. According to the senior superintendent, the publication of the articles by the Times of Eswatini of February 6, 2023 had allegedly alerted suspects that were on the police radar and some of them had fled to other countries thereby evading arrest. It was his argument that, this was confirmed by a headline and articles published in the Times of Eswatini of February 7, 2023.

He then referred the court to some of the articles, which the applicant had annexed to the application. “The applicant has a clear right derived from the common law to protect against disclosure of witness statements procured for the purpose of a criminal trial. This protection applies until the statements are adduced as evidence at the trial. The only exception to this right is the right of the accused to have access to the statements for purposes of their defence to the criminal charges,” argued the investigator. He contended that even in this case, the accused’s right was not absolute. It was further his submission that, police also had the statutory right to gather evidence of the commission offences and preserve it for presentation in court, without interference by anyone including the respondents. It was his averment that the police docket constituted such evidence.

It was his contention that, the respondents had allegedly demonstrated a continuing trend of publishing a series of articles on the material from the police docket. “There is therefore a reasonable apprehension of them making further such injurious publications if not interdicted as a matter of urgency. The prejudice caused by the publication to the legitimate operations of the police, is manifested by the suspects who have fled from this jurisdiction,” he argued. These are allegations whose veracity is still to be tested in court and the respondents are yet to file their papers. “Crucially this had the effect of denying the applicant their right to approach the High Court. The balance of convenience favours the grant of an interim order pending finalisation of the matter. This is because in the event the interim relief is refused it will compromise the ongoing police investigation and the prejudice to the forthcoming criminal trial will persist,” he argued.

He also argued that in the event the interim order was not granted, the respondents would still be in a position to publish the statements in the police docket. “The applicants have no any other adequate remedy other than to approach the High Court for an interdict. The respondents are continuously publishing articles jeorpadising the police investigations and can only be successfully interdicted by the court.” The matter returns to court on February 28, 2023 for arguments and the respondents are expected to show cause why the order should not be made final. The applicant was represented by Siboniso Hlawe from the chamber of the Attorney General (AG) while appearing for the respondents was Banele Gamedze from Musa M Sibandze Attorneys.