LAWYER ACCUSED OF RAPING DAUGHTERS RELEASED

MBABANE – A full bench, constituted as a Constitutional Court, yesterday said it would be prudent to state the principle of law as follows:
‘The noting or filing, as the case may be, of an appeal, petition for leave to appeal or review against an order or judgment in a criminal or quasi criminal matter does not automatically stay the execution of that order or judgment, unless the respondent or Crown, as it were, by way of an application for leave to stay the execution of the order or judgment pending appeal or review, establishes that failure to grant a stay of execution would not be in the best interest of justice’. This was in the matter of the lawyer who is accused of having unlawful sexual intercourse with his biological daughters. In this matter, the lawyer, *Musa, had moved a habeas corpus application for his release from custody. His argument was that he was detained unlawfully.

His Majesty’s Correctional Services Commissioner General, Phindile Dlamini, was yesterday ordered to forthwith release the lawyer who allegedly had unlawful sexual intercourse with his daughters and was ordered to stay far away from the vicinity of the complainants. The application followed an order granted under Section 136(1) of the Criminal Procedure and Evidence Act No.64/1938, which was for his release from custody pending criminal trial. The Crown vigorously opposed the accused lawyer’s application on the grounds that it had petitioned for leave to appeal before the Supreme Court and therefore the order being impugned was stayed.

The order was that Judge Titus Mlangeni granted the accused, *Musa, bail on May 17, 2024. The Crown filed an application for leave to appeal, which is pending judgment in the Supreme Court, and attached a notice of appeal. The lawyer filed an urgent application to compel the registrar of the court to facilitate the signing of the relevant documents for his release. The urgent application was dismissed. Musa then filed the habeas corpus application for his release from custody. Judge Mlangeni referred the matter to a full bench. The full bench was headed by Judge Mumcy Dlamini, who sat with Judge John Magagula and Judge Nkosinathi Maseko.

The question to be answered was whether filing a leave or notice of appeal stays an order in criminal matters. The matter was argued on Tuesday. The court delivered its judgment. The accused lawyer appeared in person while Crown Counsel Futhi Gamedze, assisted by Kingsley Masango, appeared for the director of public prosecutions (DPP). In civil matters, the general principle is that the noting of an appeal or review or petition for leave to appeal stays an order granted by the court below. In the judgment, Judge Dlamini said Zweli Jele of Robinson Bertram, who represented the registrar, proposed that the court should not just lay down a blanket rule to the effect that in every bail matter or where applicant has been released pre his trial, the rule of thumb should be that the applicant must be released forthwith despite the noting of an appeal or lodging of leave to appeal by the Crown.
Jele said the court should consider whether the interest of justice justifies applicant’s release.

Judge Dlamini said: “Now the poser is: ‘When should the court consider the interest of justice? At the time of the grant of the bail? Should the court say, in the event the respondent notes an appeal or leave to appeal then the interest of justice justifies a certain direction? “The answer is a certain ‘No! It would be an untenable position. Courts of law do not act on a frolic of their own. Further, they deal with live as opposed to anticipated controversies,” said Judge Dlamini. The judge said the proposed principle by Jele, that the court must consider the interest of justice, is a good principle of the law which augers well in the development of our jurisprudence.

The Crown noted that Judge Mlangeni espoused that: “Judge Mlangeni, ‘My considered opinion is that the common law rule of procedure is not applicable in matters of bail. Once the court has granted bail, the DPP is enjoined to approach the court to obtain an order for stay of the bail order pending the outcome of an appeal. The legal principles applicable in matters of stay, the discretion and all-would then apply. This would give the court an opportunity to weigh the contrasting interest carefully and arrive at a fair conclusion.”

Judge Dlamini said noting what Jele proposed and Judge Mlangeni espoused, there is no need to re-invent the wheel.“The procedure and the factors to be taken into account when deciding an application for leave to stay the execution in criminal matters should be similar to those that are considered under civil matters where a party files for leave to execute following the common law principle that in civil matters an appeal or review automatically stays execution of the impugned order. “The DPP or private prosecution, as the case may be, ought to lodge such an application under a certificate of urgency and the court sets out restricted timelines. Such would resonate well with the observations by T. Mlangeni J to the effect that the liberty of an individual should be viewed with serious consideration. The court that granted the bail should be the court seized with jurisdiction for such applications for stay of execution pending appeal or review,” reads the judgment in part.

Judge Dlamini said there is one interesting observation, which is a rule of procedure that ought to be noted in criminal matters. “It is that once a conviction upon the accused is pronounced, the accused is entitled to appeal. In terms of our settled procedure, his noting of an appeal does not stay the sentence that goes with the conviction, more particularly when it is a custodial sentence. “In fact, both conviction and sentence become effective upon the day of pronouncement despite the noting of an appeal. In other words, the accused person remains in custody, serving his sentence despite noting of an appeal. “So it is not clear why the second respondent (Crown) took the view that its appeal or leave to appeal automatically stayed the orders issued by my brother T. Mlangeni J.

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