Home | News | BACEDE, MTHANDENI RAISE 31 GROUNDS IN APPEAL

BACEDE, MTHANDENI RAISE 31 GROUNDS IN APPEAL

13/08/2024 08:49:00 Kwanele Dlamini

Font size:

MBABANE – Former MPs Mduduzi Bacede Mabuza and Mthandeni Dube will not go down without a fight.

The duo yesterday filed an appeal, where they raised 31 grounds outlining why they felt Judge Mumcy Dlamini was allegedly wrong in coming to her conclusion, which resulted in them being sentenced. Mabuza and Dube submitted that the sentences that were imposed on them induced a sense of shock. They are now pleading with the apex court to consider the sentences imposed by Judge Dlamini. It was their contention that the court failed to take into account that they were first-time offenders and that they did not actively take part in the damage that was caused or in causing the death of any person.

Terrorist

As part of their grounds of appeal, the former Members of Parliament (MPs) contended that the court erred in finding that they committed terrorist acts or acted in delivering political speeches, more particularly on June 24, 2021 at Summerfield, which constituted the contravention of the Suppression of Terrorism Act, 2008 and the Sedition and Subversive Activities Act, 2008. In their appeal, the former legislators argued that the lengthy sentences that were imposed by Judge Dlamini were of a grave nature, degree and seriousness.

This, according to the former MPs, indicated that, directly or inferentially, the court did not exercise its discretion at all. They are of the view that Judge Dlamini’s decision on the sentences was vitiated by misdirection. “The finding of the court is against the provisions of the Constitution of Eswatini, particularly Section 14(1)(b), which provides for a peaceful assembly and association of citizens and freedom of expression and opinion,” argued Mabuza and Dube. They averred that their speeches did not constitute any contraventions, as such the court erred. The appellants (Mabuza and Dube) further claimed that the court made a grave error of law in convicting them on count 1 (contravening the Suppression of Terrorism Act). According to the appellants, this constituted a duplication of convictions, which was unfair and highly prejudicial to them.

Evidence

They went on to argue that no evidence was presented by the Crown that any of the protesters who participated in the marches did so as a result of what they (appellants) said in their political speeches, more particularly at Summerfield on June 24, 2021. “There was no nexus between what the appellants stated and the events that occurred five days later when a person, in trying to avoid the people (on the road), drove into a group of them, killing two persons,” reads part of one of the grounds of appeal. They submitted that in their view, the court erred in rejecting their evidence, more particularly with regard to their explanation tendered in respect of the political speeches and in respect of what transpired on June 21, 2021 during the caucus meeting in Parliament. They argued that their conviction in respect of count 1 and the alternative counts thereto, as well as counts 2 and 3 (murder of Siphosethu Mtshali and Thando Shongwe) were bad in law.

Erred

Mabuza and Dube went on to state that Judge Dlamini allegedly erred in fact and in law by dismissing their application to be acquitted and discharged at the close of the Crown’s case, as per Section 174(4) of the Criminal Procedure and Evidence Act. The appellants claimed that Judge Dlamini allegedly misconstrued the legal principles applicable in the doctrine of common purpose. “The trial court misconstrued the applicable legal principles in finding that the indictment was not defective, as it did not contain the necessary averments as provided for in Section 2(2) of the Suppression of Terrorism Act of 2008,” contended the duo. According to the appellants, the court should have found that the Crown failed to prove the charges against them beyond reasonable doubt and it should have discharged them on all counts.

“In sentencing us, the court committed a grave misdirection by perpetuating its incorrect finding on the merits, that it was correct in holding that we were correctly convicted of the main and the alternative charge,” submitted the former legislators. It was also their argument that the court allegedly erred in law in that it held that the Criminal Procedure and Evidence Act, 38 of 1938 did not contain a section providing for the situation where it was doubtful what offences were committed. Judge Dlamini, when sentencing the pair, said Mabuza and Dube were convicted of murder with dolus eventualis and not dolus directus.

Dolus eventualis is premised on the perpetrator foreseeing the possibility of harm and reconciling with that foreseen possibility. Judge Dlamini said she considered that such was an extenuating circumstance (reduces blameworthiness) in both counts of murder. Mabuza and Dube were facing, among others, two counts of murder, for which they were found guilty, after two men, Shongwe and Mtshali, were run over by a motor vehicle at Nkwalini, Mbabane during the civil unrest in 2021.The judge sentenced Mabuza to 15 years for the murder of Mtshali and the same number of years for that of Shongwe. Dube, on the other hand, was sentenced to 10 years for the murder of each of the two deceased persons.

Inciting

For the main charge of contravening the Suppression of Terrorism Act, 2008, in that they were found guilty of inciting members of the public to overthrow the legitimate government, Mabuza was sentenced to 25 years imprisonment with no option of a fine. Dube, on the other hand, was sentenced to 18 years behind bars with no option of a fine. This main charge had two alternative charges. On each of the two alternative charges, Mabuza was sentenced to 15 years imprisonment without an option of a fine. Dube was sentenced to 10 years imprisonment without an option of a fine on both alternative charges.

In total, Mabuza was sentenced to 85 years behind bars while Dube’s cumulative sentence is 58 years imprisonment. The judge also ordered that the sentences are to be backdated to the date of their arrest, which is July 26, 2021. The appeal is still pending in the Supreme Court and appearing for the former MPs is Lawyer Ben J. Simelane of Ben J. Simelane and Associates.

The grounds of appeal
1. The court committed a grave error of law in convicting the appellants on the main charge (Count 1) and the two alternatives Count 1. This constitutes a duplication of convictions, which is unfair and highly prejudicial to the appellants.
2. The court was enjoined to guard against a duplication of conviction which it failed to do. It was not legally permissible for the court to convict the appellants on the main count and the two alternative counts, more particularly because the elements of the main charge and alternative counts are different and governed by the Suppression of Terrorism Act 2008 and the Sedition and Subversive Activities Act of 1938 respectively.
3. The convictions of the appellants by the court on the main count and the alternative counts are bad in law. Accordingly, the convictions of the appellants should be set aside.
4. Section 121 of the Criminal Procedure and Evidence Act 67 of 1938 provides for a situation where the Crown is doubtful, which offence will be proved. The Crown can then charge an accused in the alternative and at the end of the trial, ask for a conviction on the main alternative count, but not both. In the present case, the Crown did not ask for a conviction on the main and the two alternative counts.
5. The appellants’ constitutional rights to a fair trial were infringed.
6 The court erred in finding that the indictment, as amplified by the further particulars furnished by the Crown, complied with Section 5(1) of the Suppression of Terrorism Act, 2002.
7. The court erred in finding that the appellants committed a terrorist act in delivering speeches, more particularly on June 24, 2021 at Summerfield.
8. This finding by the court is against the provisions of the Constitution of Eswatini, more particularly Section 14(1)(b) of the Constitution, which provides for peaceful assembly and association of citizens and the freedom of expression and opinion. The speeches of the appellants did not constitute any contraventions.
9. The court erred in finding that the ‘banning order’ was lawful. The Crown failed to call the author of the banning order. The evidence that was presented by the Crown was hearsay evidence which is inadmissible against the appellants.
10. The court erred in finding that the appellants’ evidence regarding what transpired in the caucus of Parliament on June 21, 2021 was an afterthought.
11. The court erred in finding that the defence witnesses, Myeni and Zwane, corroborated the evidence of the appellants in this respect.
12. No evidence was presented by the Crown that any of the protesters who participated in the marches did so as a result of what the appellants said in their political speeches, more especially at Summerfield.
13. There was no nexus between what the appellants stated and the events that occurred five days later when a person, in trying to avoid others, drove into a group and killed two of them.
14. The court erred in finding that: “To subsequently call for a continuation of the delivery of the petitions thereof, especially in light of the banning order was akin to a call for furtherance of the violence that was evident during the petition delivery.”
15. The court misconstrued the legal principles applicable in convicting the appellants of counts 1 and 2. The appellants, as charged did not commit any act of causing the death of the deceased.
16. The court erred in rejecting the evidence of the two appellants, more particularly with regard to their explanation tendered in respect of the political speeches and in respect of what transpired on June 21, 2021 during the caucus meeting in Parliament.
17. The conviction of the appellants is in respect of the first count and the alternative counts thereto as well as counts 2 and 3 are bad in law.
18. The court misconstrued the legal principles applicable to the doctrine of common purpose.
19. The court erred in fact and in law by dismissing the appellants’ application to be discharged at the close of the Crown’s case.
20. The court misconstrued the applicable legal principle in finding that the indictment was not defective, as it did not contain the necessary averments.
21. The court should have found that the Crown failed to prove the charges against the appellants beyond reasonable doubt. Accordingly, the court should have discharged them on all counts.
22. In sentencing the appellants, the court committed a grave misdirection by perpetuating its incorrect finding on the merits that it was correct in holding that the appellants were correctly convicted of the main and the alternative count
23. The court erred in law by holding that the Criminal Procedure and Evidence Act does not contain a section providing for the situation where it is doubtful what offences were committed. As such the court misdirected itself on the relevant legal principles. Despite this, the court imposed a sentence on the main and the alternative counts, which militates against the legal prescripts.
24. In sentencing the appellants, the court in effect sentenced the appellants thrice for the same offence. This is highly irregular and extremely prejudicial to the appellants, which calls for the appellate interference.
25. The court failed to take into account, alternatively adequately, that the appellants were first offenders and did not actively take part in the damage that was caused or in causing the death of any person.
26. The sentences imposed on the first appellant (Mabuza) are disproportionate to the sentences imposed on the second appellant (Dube). The court misdirected itself in finding that because the first appellant did not testify under oath, that such election by him called for a harsher sentence to be imposed on him.
27. The court in imposing the sentences did so improperly and not judicially. This is a misdirection calling for the interference of the Supreme Court.
28. The lengthy sentence imposed by the court is of a grave nature, degree and seriousness, indicating directly or inferentially that the court did not exercise its discretion at all. Accordingly, the court’s decision was vitiated by misdirection.
29. The sentences imposed on the appellants are startlingly inappropriate and induced a sense of shock.
30. The dictates of justice clearly entitle the appeal court to consider the sentences imposed on the appellants afresh.
31. The court misdirected itself in finding that because the first appellant did not testify under oath, that such election by him called for a harsher sentence to be imposed on him.