IN THE HIGH COURT OF SWAZILAND
Criminal Case 389/15
KHUMALO MARWICK THANDUKHANYA APPLICANT
THE KING RESPONDENT
Neutral citation: KHUMALO MARWICK THANDUKHANYA VS THE KING (389/15) SZHC 117  (27/01/16)
27th November 2016).
Coram: NKOSI J
Delivered: 27th January 2016.
 This is an application that was brought before on a matter of urgency. The long and short of it is that the Applicant, a prominent politician and a Member of Parliament seeks to vary the conditions of bail which necessitates him having to make application to this Court for release of his passport every time he is compelled to travel outside the boarders of this Kingdom for a number of reasons.
 The Applicant has come to this Court on a number of occasions since he was admitted to bail in June 2013 on certain conditions; two of which were that;
(i) he surrender his passport to the investigating officer at Mbabane Police station.
(ii) he must remain within Swaziland whilst out on bail.
 As far back as July 2013, the Applicant began his expeditions to this Court when he applied for variation of the bail conditions: seeking to have his passport released in order that he attends meetings of the Commonwealth Parliamentary Association (CPA). This application was apparently denied by this Court.
 A similar application was launched by the Applicant in February 2014, only this time seeking his passport to be released on the grounds he is compelled by his medical condition to constantly seek medical attention in the Republic of South Africa. Again the application for release of his passport to him was denied the Court giving reasons that “allowing (the) Applicant to travel anytime where would be equal to rendering Applicant a person who not on bail”. Obviously this order of Court was based on the finding by the Court that the Applicant would be entitled to travel to South Africa, i. e have the police release the passport to him upon submission of a schedule of appointments he had made with Medical specialists. He was thus successful in so far as he was granted access to his passport and thus could and did presumably travel.
 In August 2014 the Applicant sought an order from this Court that his passport be released, for another trip; this application despite opposition from the Respondent was once again granted in respect of that specific travel. It seems however that lady luck was not on the side of the Hounourable Member, there was an immediate appeal and an application to have the passport immediately returned to the police made by the Respondent. The Application by the Respondent was successful the events consequential to that application are indeed eventful and bear witness to certain negative historic developments in the nation’s Courts. I shall not bother today to outline these events.
 It suffices to say that the Court eventually made a very particular order, which was to the effect that the Applicant’s passport must now be kept in the possession of the Registrar of this Court. This is a very unusual order whose aim cannot be easily fathomed or the wisdom employed by the Court comprehended.
All that I can say is that the resultant outcome or public effect was that a further stain on the reputation of our judicial system was perpetrated whether inadvertently, or intentionally.
 The historical background however gives the observer a view that this Court has not, at any given stage (with the exception of the strange events that occurred after the August 2014 application,) really sought to deny the Applicant travel as and when he desired the same for legitimate travel reasons. The Applicant was never, to my knowledge found wanting in terms of abusing or breaching his bail conditions either interfering by with witnesses or breaching the Court granted variations to his travelling needs to destinations outside the Kingdom.
 Which brings us to the current application? It also has a history of its own. Basically, it seems that over the years the Applicant has sought to vary his conditions of bail pertaining to the release of his passport and the manner and conditions of such release. Last year in March the Applicant launched another application to vary the conditions pertaining to the release of his passport. In essence he seeks an order to be allowed to have access to his passport every time he is compelled to travel outside these borders without the necessity of approaching this court every time he has to travel. I shall not at this stage go into the orders granted by this Court in respect thereof, save to state there are technical issues pertaining to whether when her ladyship granted a latter order she was functus officio. I do not think such technicalities have any bearing on the matter. I think my function is to look at prayer 4 of the Notice of Motion before me and determine whether or not the Applicant is entitled to such an order. I have looked at both parties’ Heads and Supplementary Heads of Argument.
 Certain issued were raised in argument being;
(i) Jurisdiction in terms of the principle of rei judicata.
(ii) As already stated whether or not the Court was functus officio
These are not a compelling factor in the current application – they could have a bearing on the nature of the applications brought before this Court. They may also have a bearing on certain focal points of law. However, in my view, the issue cannot revolve around whether or not the learned Judge was fuctus officio or whether or this court is of rightfully seized of the hand to justice being done and seen to done in this matter
 After a long and thorough consideration and with a certain amount of research I have come to the realisation that this very Court has in recent past granted orders couched in similar wording as prayer 4 of the Applicant’s Notice of Motion. A case in point is that of Zanele Gamedze Vs The King Criminal Case No. 242/2013. It is a fact that Zanele Gamedze is employed as a Secretary of CPA- Swaziland and is a co-accused of the Applicant. Both have been charged by the Respondent for the same offence. They are said to have been acting in furtherance of a common purpose etc. Of particular importance is that when she made a similar application to that of the Applicant this Court gave her the order she sought. In other words Zanele Gamedze does not need to make application to this court for her passport every time she needs to travel outside the country. All she has to do is approach the investigating officer and the Respondent, and presumably, after due acceptable explanation, she is given her passport. She does not need to incur unnecessary cost of an urgent application. Conversely the court’s time is not wasted on an unnecessary applications”.
 It seems to me that the technical issues pertaining to res judicata and/or the not so technical issue of this court being “functus officio” do not apply in this particular case. This court is empowered to apply the provisions of the constitution in its original jurisdiction. This it would be folly to restrict its role to mere functurision on the basis of res juidicata and possibilities of orders granted ex pronto. Events do lead to incongruancies as, as such, it is the duty of the court to exercise immediate resytrain from coiming to base less conclusion that they cannot correct themselves when there is a plethora of applications pertaining to a singular issue. The applications were and are singularly specific.
 The question this court has been faced with is why is it that the current Applicant has been treated differently. This is a matter that has been looked into by myself and I have come to the conclusion that the Respondent has seriously violated the constitutional rights of the Applicant. Thus so in light of the entrenched constitutional privision and being Section 20 (1) which reads;
“20 (1) All persons are equal before and under the law in all spheres of political, economic, social and cultural life and in every other respect and shall enjoy equal protection of the law.”
(i) Granted Prayer 4”
(ii) Costs Reserved.
(iii) Passport to be immediately sent back to the Investigating Officer.
S.A. NKOSI J
JUDGE OF THE HIGH COURT
For the Applicant : Attorney L. Howe
For the Respondent : S. Dlamini - D.P.P