KHUMALO VS THE KING (389/15) 117 [2016] (27 January 2016);

Case name: 
KHUMALO VS THE KING

 

IN THE HIGH COURT OF SWAZILAND

RULLING

Criminal Case 389/15

KHUMALO MARWICK THANDUKHANYA                                              APPLICANT

Versus

THE KING                                                                                                           RESPONDENT

Neutral citation:                 KHUMALO MARWICK THANDUKHANYA VS THE KING  (389/15) SZHC 117 [2016] (27/01/16)

27th   November 2016).

Coram:                                  NKOSI  J

Heard:                                    /12/15

Delivered:                             27th January  2016.

 

RULLING

 

[1]       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.   

 

[2]       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.

 

[3]       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.   

 

[4]       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.  

[5]       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.

 

[6]       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.

 

[7]       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.  

 

[8]       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.

 

[9]       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

 

[10]    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”. 

[11] 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.

[12] 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.”

[13] When

(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