RAPE-ACCUSED LAWYER LAUNCHES ATTACK ON 2 JUDGES

MBABANE - The lawyer who is accused of sexually violating his children, cousin and helper has launched an attack on the judges who attended a function where the DPM was a guest.

The event, which the lawyer is now using as one of his grounds to motivate his application for the recusal of Judge Sabelo Masuku from presiding over his matter, was held at Gwamile Apostolic World Faith Church, at KaLuhleko, on May 28, 2023. During the event, the Deputy Prime Minister (DPM), Themba Masuku was accompanied by Judge Sabelo, who is his son.
Also present during the service were: Supreme Court Judge Nkululeko Hlophe and his wife Lorraine, a judge of the Industrial Court, who are both staunch members of the church.

According to the incarcerated lawyer, it was allegedly not expected of judges of both the High Court and the Supreme Court to be invited as guests in a political gathering organised by the executive arm of government without compelling factors. “Judges should, as a matter  of practice, not  have access to the public space so that they may not be easily tainted with the dust of factual conflicts and occurrences that may have the effect of disqualifying them from sitting in  any matter before court,” alleged the lawyer. Some of those who were also part of the service were the Minister of Tourism and Environmental Affairs, Moses Vilakati, and LaMgabhi Member of Parliament (MP) Dumisani Dlamini.

In his court papers, the lawyer did not take issue with the presence of Judge Lorraine during the service, but his focus was squarely on Judge Sabelo and Judge Hlophe. “The deputy prime minister has a naturally close relationship with the learned judge as his biological son, to the extent that the judge was seen supporting his father in his (DPM) portfolio duties by attending a function on May 29, 2023 wherein the DPM was commissioned to thank all those who assisted government to suppress the political unrest in the country,” argued the lawyer. He averred that he was not just assuming that Judge Sabelo had a close relationship with the DPM. Annexed to the application is a copy of a newspaper article about the event. According to the accused (lawyer), the article allegedly showed that Judge Sabelo was not slow to attend political gatherings in support of his father’s portfolio duties. He alleged that the presence of Judge Sabelo during the event allegedly showed that the relationship he had with the DPM was very tight.

Assisted

“It is worth noting that the DPM had called this meeting to thank those who assisted the government to suppress the unrest and it is not known what contribution was made by both Judge Sabelo and Justice Hlophe of the Supreme Court to suppress the unrest. Thus I am bound to have a suspicion that Judge Sabelo may be persuaded to buy into the DPM’s attitude over me,” he argued. He also brought it to the attention of the court that he tried his luck with the Supreme Court however, his application for bail was dismissed. These are allegations whose veracity is still to be tested in court. “May I mention further that I did try my luck with the Supreme Court, however, my application was dismissed. I do note that the majority judgment was written by Justice Hlophe, who was also in attendance during the function, to receive gratitude from the DPM for whatever contribution the learned judge of appeal may have offered in the suppression of the unrest,” submitted the accused.

The accused went on to tell the court that, his application for the recusal of Judge Sabelo had nothing to do with forum shopping but was allegedly based on genuine grounds.  He said he felt that as a son of the DPM, Judge Sabelo could easily be influenced by the beliefs and aspirations of the latter to his case which he (DPM) had expressed publicly, to allegedly see him rot in jail. His application for the recusal of Judge Sabelo is being opposed by the director of public prosecution (DPP), who contended that through same, the imprisoned lawyer was attempting to do what was known as forum shopping. Forum shopping in law is a colloquial term for the practice of litigants having their case heard in a court thought most likely to provide favourable judgment.

In his replying papers, the attorney, who cannot be named for ethical reasons, informed the court that he had a reasonable apprehension of bias that Judge Sabelo might not bring to bear an impartial mind in deciding his case, because of his parental relationship with the DPM.  He claimed that the DPM had taken the issue of his arrest and prosecution as a personal crusade transcending beyond his constitutional duty, ignoring the divide between the executive and judicial functions.  

Evidence

“I maintain that my apprehension of bias is real and is based on credible evidence of relationship between the learned trial judge together with proven determination of the DPM whose portfolio is tasked with enforcing the Sexual Offences and Domestic Violence (SODV) Act to come with positive results,” he argued. The lawyer further contended that his application had nothing to do with forum shopping. The matter is still pending in court and appearing for the accused is Professor Msibi while Principal Crown Counsel Futhi Gamedze and Crown Counsel Mncedisi Dlamini are appearing for the prosecution.

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