MISA-Swaziland | Alert
January 24 2014
“This court has a Constitutional duty to dispense justice without fear or favour … Justice must not only be done, it must also be seen to be done.”
These are the words of High Court Judge Bheki Maphalala as he granted bail to Swaziland’s chief government vehicle inspector Bhantshana Gwebu.
The bail hearing was heard in Swaziland’s High Court on Wednesday 29 January, 2014.
Bhantshana has been in custody since he handed himself into police on Saturday 20 January. It was reported that union leaders tried to visit him in jail but were denied access.
On Saturday 18 January Gwebu arrested and charged the driver of a government vehicle for allegedly not having the required authorisation documents. The passenger in the government vehicle at the time was High Court Judge Esther Ota.
It’s been reported that Judge Ota was picking up uniforms for her children at Sifundzani High School when Bhantshana arrested her driver, Vusi Tsela.
The Chief Justice then served Bhantshana with a warrant of arrest and charged him with contempt of court. It has been alleged that in arresting the driver of Judge Ota, she was then unable to make it to court to carry out her duties.
The Crown — or Department of Public Prosecutions (DPP) — case against the vehicle inspector also reads: “Judge Esther Ota enjoys diplomatic immunities and privileges as a Judge of the High Court from the Commonwealth.”
Today’s Swazi Observer reports that Bhantshana “argues that it was open to Judge Ota, who was a passenger to find alternative transport after realising that the vehicle registered GSD028JU had authorisation problems”.
In other words, Bhantshana says he never charged or detained Judge Ota and she was free to make her own way to the court.
The Crown’s argument, led by South African lawyer Norman Kades, was that Bhantshana should be denied bail because he hadn’t properly filled in the bail application forms, and that he hadn’t handed over his passport.
Kades also stated that any health concerns that Bhantshana is suffering from can be taken care of while he is “incarcerated”.
Bhantshana has also stated that his wife will have trouble to pay the bills if he is not granted bail. In response to this matter, Crown lawyer Kades said, “clearly the wife can take care of the school fees”.
Bantshana’s lawyers argued that his employment — or at least a reliable income — is not guaranteed if he is kept in custody.
Previous claims that Bhantshana was a flight risk because he was being supported by a union — and that union would supposedly assist Bhantshana to skip bail — were dropped by the Crown’s legal team. This claim was also found by the court to be baseless. Judge Maphalala said the media had misled the pubic in reporting claims a union had “hijacked” the case.
Bhantshana’s legal team argued that he was not a flight risk and that he had a right to bail.
In putting forward the argument for bail, Bhantshana’s head lawyer Machawe Sithole said Bhantshana was a “law-abiding man” and a “Christian”, noting that he had given many years of service in public life and was a “Swazi citizen known to everyone”.
In making his decision to grant bail, Judge Maphalala noted that Bhantshana had handed himself into police custody; that the unions supporting him are legally recognised; and that union members accompanied Bhantshana when he handed himself into police.
The judge said there was “no evidence at all that the applicant (Bhantshana) is a flight risk”.
Judge Maphalala also said that unions have a duty to assist there members, adding that allegations by the Crown — to the effect that a union had tried to “hijack” the case — are “far misleading”.
Phumlani Gwebu, the son of Bhansthana, said: “I’m happy my father has been released on bail and I hope he goes on and wins the case. Truth be told he was executing his duties that the state hired him to do.”
The judge granted bail to Bhantshana at E15,000 ($US1650) but said he only had to pay E2,500. The balance would paid in surety. Bhantshana was also ordered to surrender his passport and to report to Manzini police station on the last Friday of each month until his next day in court.
No date has been set for pre-trial proceedings.
In the middle of the story: High Court Judge Esther Ota
Esther Ota, 48-years-old, grew up in Nigeria and worked as a judge in Nigeria as well as in The Gambia before joining fellow legal eagles in Swaziland.
In his welcoming remarks to Judge Ota when she joined Swaziland’s judiciary, Chief Justice Michael Ramodibedi speaks of Ota’s rise up the judicial ladder.
“In 2009, she was elevated to the position of the President of the Gambia Court of Appeal, a position she held until November 2010, when she was seconded by the Commonwealth to the High Court in this jurisdiction.”
Photo at front post is of Swaziland’s High Court