IN THE SUPREME COURT OF SWAZILAND
HELD AT MBABANE CRIM. APPEAL CASE NO. 18/2014
In the matter between:
JUDGMENT
BHEKI MAKHUBU 1ST APPELLANT
THULANI RUDOLP MASEKO 2ND APPELLANT
and
THE KING RESPONDENT
Neutral citation: Bheki Makhubu & Thulani Rudolph Maseko and The King (18/2014) [2014] SZSC20 (30 May 2014)
Coram: S.A. MOORE J.A., DR. S. TWUM J.A., DR. B.J. ODOKI J.A.
Heard: 14 MAY 2014
Delivered: 30 MAY 2014
Summary: Immediately before the scheduled time enrolled for
the hearing of the instant appeal, counsel for the parties approached this Bench in chambers – Counsel for the Appellants disclosed their instructions to seek the recusal of the members of this Bench on the ground that they were serving under the Honourable Chief Justice who was the head of the Judiciary and the functional President of the Supreme Court – In Open Court, counsel for the Appellants sought an adjournment in order to make applications for the recusal of the members of this court – Adjournment granted – Appeal to be enrolled for hearing in the November session of this Court – Question of costs for the day to be determined at an appropriate stage.
JUDGMENT
MOORE JA
[1] This appeal is against the orders of the High Court that:
2nd and 4th Accused be remanded in custody till Tuesday the 1st April 2014.
2nd and 4th Accused be remanded in custody till Wednesday the 9th April 2014.
These grounds of appeal were set out in the Notice of appeal.
[2] The Roll of cases set down for hearing in the May session of this Court was first published on the 8th day of April 2014. The instant case was set down for hearing on the 14 May 2014. The published Roll was circulated, inter alia, to The Law Society of Swaziland, Legal Practitioners, and to Litigants in Person. The published Roll also gave notice that: ‘There will be a roll call on Friday 2 May 2014 at 9:00 a.m.’
[3] Shortly before the sitting of this Court was about to commence on the morning of Wednesday 14th May 2014, Mr. Z. Mkhwanazi for the 1st Appellant, Advocate L. Maziya for the 2nd Appellant, and Mr. N. Maseko for the Respondent, approached this Court in chambers. Counsel for the parties correctly adopted this process: for it soon emerged that counsel for the Appellants had been instructed to apply for the recusal of the members of this Court on the ground that the Honourable Chief Justice, was both the Head of the Judiciary, and also the functional President of the Supreme Court.
[4] It was the unanimous consensus of all the lawyers concerned that the Appellants were fully entitled to apply for the recusal of the members of this bench: but that their intention to make their applications should be signified in open court. It was also agreed that Counsel for the Respondent was equally entitled to oppose any applications for this Bench’s recusal if so advised and instructed.
[5] When the matter was called in open court, Advocate Maziya, who was clearly spearheading the team representing the Appellants, conceded that what he was seeking, in essence, was an adjournment of the hearing of this appeal, previously enrolled for hearing as he stood on his feet, so that the Appellants could make such applications as were warranted by their instructions, and that any applications made would take their normal courses.
[6] Counsel for the Respondent did not offer vigorous objections to the applications for an adjournment; but telegraphed his intention to raise the question of costs for the day at the appropriate time.
[7] In all the circumstances of the case, this Court acceded to the applications for an adjournment leaving the question of costs for the day to be determined at an appropriate stage.
ORDER
[8] It is the order of this Court that:
The matter be and is hereby adjourned to the November 2014 sitting of this Court.
The question of costs for the day is to be determined at an appropriate stage.
S.A.MOORE
JUSTICE OF APPEAL
I agree
DR. S. TWUM
JUSTICE OF APPEAL
I agree
DR. B.J. ODOKI
JUSTICE OF APPEAL
For the 1st Appellant : Mr. M.Z. Mkhwanazi
For the 2nd Appellant : Mr. L. Maziya
For the Respondent : Mr. N. Maseko
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