‘GAWUZELA’S SON, CO-ACCUSED CLAIM CJ INTERFERING WITH FILE

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.

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