Zulu v Commissioner of Correctional Services (Prisons) and Others (3552 of 2005) [2005] SZHC 107 (4 October 2005)

THE HIGH COURT OF SWAZILAND

JAMES ZULU

Applicant

And

COMMISSIONER OF CORRECTIONAL SERVICES (PRISONS)

1^st Respondent

COMMISSIONER OF POLICE

2^nd Respondent

THE DIRECTOR OF PUBLIC PROSECUTIONS

3^rd Respondent

THE ATTORNEY GENERAL

4^th Respondent

Civil Case No. 3552/2005

[1] The application before court is for a writ of habeas corpus and is supported by the Founding affidavit of his attorneys deposed to by an Articled Clerk, one Martin Dlamini. The application was filed under a Certificate of Urgency where, amongst other things, the court is asked to order and direct either the 1^st Respondent and/or the 2^nd Respondent to release and liberate the Applicant in their custody forthwith and further that the court award cost of suit at attorney and client scale.

[2] The basis of the application is that the Applicant had been granted bail by the Mbabane Magistrate Court on criminal charges of extortion which he paid and was awarded a Liberation Warrant by that court. However, on presentation of the said Warrant the officers of the 1^st Respondent declined to honour it. Thereafter followed "cat and mouse" chase by Applicant's representative of officers of the 1^st and 2^nd Respondent as to the whereabouts of the Applicant. It appears that Applicant had been released to the police under questionable circumstances. This action has propelled the Applicant to launch these proceedings alleging that his continued detention and incarceration is unlawful and that the Respondents are in contempt of court.

[3] All the Respondents have been served with the papers but they have not filed any opposing affidavits in view of the fact that they were served during the weekend, the Attorney - General was served with the application papers whilst he was attending the graduation ceremony at the University of Swaziland on Saturday.

[4] When the matter was called Mr. Phila Dlamini who happened to be attending another criminal case before me stood for the 3 ^rd Respondent and he applied to be given an opportunity to take instructions on the matter. The case was stood down for a while for this purpose. When the matter resumed he informed the court that Applicant had been released in accordance with the dictates of the Liberation Warrant issued by the Magistrate Court and thereafter he was re-arrested by the police in connection with other criminal charges. He was presently in the custody of the police.

[5] My initial view at this juncture was that the application had been overtaken by events in view of what Mr. Dlamini for the Crown had submitted. It appears to me that whatever order the court granted will be bruten fulmen in the circumstances. Mr. Dlamini for the Crown was in agreement with me on this point but Mr. Simelane for Applicant took the position that Applicant is entitled to the order sought in paragraph 2 of the Notice of Motion on the basis of what is averred in paragraph 8 of the Founding affidavit. I put it to Mr. Simelane that in that case there is a dispute of fact between what is averred by the Applicant and what was submitted by the Crown from the Bar as to the circumstances in which the Applicant was released by the 2^nd Respondent and thereafter re-arrested by the police. It is imperative therefore, in my view, that the Respondents file their Answering affidavits to what is averred by the Applicant in the Founding affidavit. I cannot rule the matter only on the basis of the Applicant's Founding affidavit without hearing the other side on such serious allegations of contempt of court levelled against both the 1^st and 2^nd Respondent.

[6] In the result, for the afore-going reasons the Respondents are to file their Answering affidavit within 7 days from the issuance of this ruling and thereafter the matter to take its normal course.

S.B. MAPHALALA

JUDGE