Home | News | BACEDE’S BID TO EAT KFC, NANDO’S, PIZZA DISMISSED

BACEDE’S BID TO EAT KFC, NANDO’S, PIZZA DISMISSED

15/10/2024 08:54:00 Kwanele Dlamini

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MBABANE – The move by former MP Mduduzi Bacede Mabuza to continue receiving food from outside prison, like KFC, Nando’s, Galito’s and pizza, as was the case, has been dismissed.

The High Court yesterday dismissed the former Hosea Member of Parliament (MP) Mabuza’s application to be allowed to source his meals from outside prison at his own expense. Respondents in the matter were the Commissioner General of His Majesty’s Correctional Services, Phindile Dlamini, attorney general (AG) and the Commission on Human Rights and Public Administration/Integrity.

Mabuza was represented by Mzwandile Masuku of Ben J Simelane and Associates, together with Mhlengi Mabuza. Crown Counsel Sibonginkhosi Dlamini appeared for the state.

Charges

Mabuza is serving a sentence of 25 years. He has been in custody since July 25, 2021, when he and former Ngwempisi MP Mthandeni Dube, who was sentenced to 18 years, were arrested for inciting violence, among other charges. Section 69 of the Correctional Services Act, 2017, allows inmates the privilege of private meals up to their conviction, thereafter, they must eat food provided by the institution.

A couple of months after their arrest, Dube decided to stop having private meals and began eating the food that is provided for all inmates at Matsapha Correctional Services. Mabuza had been enjoying the privilege of private meals, provided by his relatives, until July 25, 2024, when he and Dube were sentenced by Judge Mumcy Dlamini.

The Correctional Services stopped Mabuza from enjoying the privilege of private meals soon after he was sentenced. In fact, his last meal from outside prison was the supper of July 25, 2024, when their sentence was issued. Among the foods that his relatives brought for him in prison, prior to sentencing, according to the commissioner general (COMGEN), included pizzas, Galito’s, Nando’s and KFC. Others are sour porridge, beans and more.

When Mabuza approached the High Court, demanding to be allowed access to private meals, he argued that a doctor had prescribed a special diet for him due to a health condition he has. However, the COMGEN stated that no doctor could prescribe such foods as Nando’s, KFC, Galito’s or pizza to a patient. The dismissal of Mabuza’s application by Judge Titus Mlangeni yesterday, means the former MP will no longer enjoy such meals and others for the duration of his sentence, unless he seeks to overturn the order on appeal and succeeds.

Inmates

Some of the meals provided to inmates at the Correctional Services are porridge, soup, cabbage, beans and meat, once a week. Judge Mlangeni said Mabuza’s case seemed to be squarely predicated on the import of Section 69 (2) of the Act. Mabuza told the court that Section 69 of the Act does not specifically bar private meals for convicted offenders.

Section 69 (2) provides that: “An offender who has not been convicted may, subject to examination and to such other conditions as may be prescribed, be permitted to maintain oneself from private sources.” Judge Mlangeni said there is no hidden meaning in this subsection. “Its purport is that an unconvicted prisoner may, subject to examination and such conditions as may be imposed, be allowed to source meals privately. “It bears no elaboration that this privilege was intended by the lawmaker to end on conviction day,” said the judge.

Judge Mlangeni said he observed that, concerning Mabuza, the privilege did not end on conviction day, but continued until the date of sentencing. This, according to the judge, does not answer to the requirements of acquiescence to the extent of creating a right enforceable in law.

“To hold otherwise would be tantamount to making law, which the court has no mandate to do,” said the judge. The judge also quoted Section 69(5): “An offender, who has not been convicted shall receive the regular Correctional Services food and clothing if the offender does not provide oneself with food or if the food and clothing the offender has provided oneself is, in the opinion of the officer in charge, not of nutritional value or is not of wholesome quality and not well prepared and served.”

Offender

Judge Mlangeni observed that the letter of the law applies to an offender who has not been convicted. “Upon conviction, the privilege ends.” Mabuza argued that Section 69 of the Act ‘does not specifically bar private meals for convicted offenders and that this translates into ‘a negative obligation wherein the applicant at his expense mitigates the shortcomings’ within the Correctional institution.

The judge said the notion of a positive duty translating into a negative duty has not been explained to the court.
The judge mentioned that no legal authority was offered for this novel submission. Judge Mlangeni said in the present scenario, it is unclear if this duty would be enforceable by the State, and if so how?

Mabuza, according to the court, has not done enough to provide edification on this, the same way that he did not provide elucidation on acquiescence. “The upshot of the applicant’s submission is that the court must find that the express reference to unconvicted offender has equal application to convicted offender.

“This, of course, would cause much violence to a clause that is otherwise straightforward and has the rational support of the presumption of innocence,” said the judge. Judge Mlangeni said the relief sought by Mabuza is in the form of an interdict.

He said it appeared to the court that Mabuza’s application fell short of at least two requirements.
To the extent that this may require pitting the applicant’s rights against the legal duties of the State towards him, the judge said, this in the court’s view, would probably require the attention of the Constitutional Court.