These were words of the Honourable Justice Phillip Levinhson expressing shock after learning of the application to stay criminal proceedings. The Honourable Judge who hails from Cape Town said, in his 20 years of experience as a Judge , he had never heard of such aplication and that from his knowledge only the Supreme court could take the matter as he was not subordinate to the High Court.
Qhawe Mamba's case of allegedly defrauding unsuspecting citizens monies through pyramid schemes estimated to the value of E17 Million was proceeding when his lawyers felt his constitutional rights in the matter were being violated. Lawyer Mabuza cited that his clients rights to a fair trial were violated as evidence that would exonerate him has been kept away from him and he cannot access it. The applicant as qouted " I dare say the Crown suppressed evidence to ensure a guilty verdict is obtained". He says that the Crown is enjoined to produce all evidence to the Honourable Court in a criminal enquiry, even if that evidence is exculpatory to the accused. He states further that in his case there has been a deliberate ploy to obtain a guilty verdict in that after obtaining ex parte orders to seize all his property and assets in Swaziland and in South Africa, documents, facilities and evidence was never presented before court. He believes that pleadings filed in respect of civil matters cannot be used in a criminal enquiry. He decries the fact that a lot reliance has been irregularly placed by both the crown and the Honourable court upon the record of previous civil matters, copies of which pleadings have been tendered as evidence in the said trial. He further lamented the fact that the Judge has prejudiced the defence in its defence by letting the state to call only two witnesses to "prove " actual prejudice suffered by thousands of complainants or investors to an amount of E17 million.
He feels he is being made a sacrificial Lamb by the Crown as an example that the Crown is fighting corruption and treated differently to the point of discrimination, citing that a special court has been set has been set up by the Swaziland Government's Judicial Service Commission by importing a Judge from a foreign jurisdiction when no exigencies exist for him. He further states that the Honourable Justice Phillip Levinsohn has expressely stated in open court that the Crown finds favour with him as he has allowed glaring irregularities that trample on his constitutional rights to a fair trial. The trial court has unjustifably allowed the splitting of charges in as much as all the charges flow from the same facts of transactions and that after the Crown had failed to lead evidence on the four counts the court then introduced unknown and strange " hooking in" the rest of charges by merely proving one count.
The full bench comprising of Justices Bheki Maphalala, Esther Ota and Mary Sey ruled that though the application was of an unusual nature in criminal law but since it invokes certain parts of the Constitution, it is necessary that it be heard. The Honourable Justice Maphalala who chaired the proceedings said, " It is important to observe the rules of natural justice and hear what everyone has to say". He told parties that he had gone through the papers but because of the absence of the transcript of the whole case, they could not reach a reasonable conclusion. He then granted an interim order staying the proceedings to enable the Office of the Registrar Of the High Court to file the transcript. He further ordered both counsel to file their heads of arguments on or before the 23rd of March 2011.
Senior Counsel Francois Joubert has asked to be excused from the case after the court granted the interim order, stating that since the matter was reserved for only two weeks after which he shall have other engagements. The court granted him the application mentioning that other counsel from the office of the Director Of Public Prosecutions would have to take over the matter if he, Joubert will be unavailable.
The case continues on the 24th March 2011.