EXCLUSIVE: TRIBUNAL REPORT ON THE PALACE COUP AND EVENTS THAT LED TO THE INSTALLATION OF KING MSWATI III
his Tribunal was appointed on 16th November 1987 in terms of section 4 of the Tribunal Decree, 1987
DRAFT JUDGEMENT T. In terms of a Certificate issued by the Prime Minister on the same day it is charged with the duty of trying the 12 accused on an indictment which alleges that each is guilty of High Treason and of contravening section 2 of the Protection of the Person of the Indlovukazi Act 1967. Each accused pleaded not guilty to both counts when the indictment was put on 19th November 1987 and it is therefore for the prosecution to establish the guilt of each accused beyond reasonable doubt. T
he first count alleges that during the period 1983 to 1984 at Lobamba and Mbabane the accused wrongfully and unlawfully and with hostile intent against Queen Dzeliwe and against the Kingship of the Kingdom of Swaziland dethroned and deposed the Queen Regent and drafted laws with the intention of changing the structure of the Kingship and the functions or powers of the Head of State. Seventeen overt acts are alleged. The second count alleges that during 1983 the accused wrongfully and unlawfully and with the intention of bringing into hatred or contempt or of exciting disaffection or ill-will or hostility against the person of the Indlovukazi Dzeliwe insulted her and removed her from office as Indlovukazi. It is further alleged that they accused the Indlovukazi of being against Liqoqo, of being a woman who did not want to listen to her in-laws, of being a witch and a barren woman. Further particulars of the second count were provided at the request of the Tribunal and as follows.
(1) The insult was made at Lobamba on 4th September 1983 when the Indlovukazi was removed physically from Lobamba. The insult was made by accused 5 and 6 calling her a barren woman and a witch. A further insult was made by accused 11 at a meeting called between 13th October 1983 and 15th October 1983. He called her a woman who does not listen to her in-laws. According to Swazi Law and Custom the Indlovukazi is not referred to as a woman and those women who are wives of the King are not referred to as women but Emakhosikati. (2) The accusations in the last sentence were made at meetings held between 4th September 1983 and 15th October 1983. The accusations were made by accused 1, 2, 3, 7, 9, 10 and 11.
It is common cause that on 8th or 9th august 1983 Queen Regent Dzeliwe was removed as Regent and as Indlovukazi but before examining the circumstances surrounding the removal it is convenient to set out the background and to consider the laws, both statutory and customary, which govern the position of the Indlovukazi and a Regent. The position of the Indlovukazi is as old as the Swazi Nation itself and traditionally it is held by the mother of the King. The mother of the King is also the mother of the Nation.
When a King dies a successor is selected and upon his installation by the Indlovukazi his mother assumes the position of Indlovukazi and the former Indlovukazi then steps down. And so upon the installation of King Sobhuza II in 1921 Indlovukazi Gwamile stepped down and the King’s natural mother, Lomawa, assumed that position. Kings do, of course, frequently outlive their mother and when that occurs a new Indlovukazi has to be chosen. Looking back through history the new Indlovukazi would normally be a person whom the King would regard as a mother such as an aunt but in the reign of Sobhuza II, no doubt due to his longevity, a departure was made and on the death of Lomawa the Indlovukazi was selected from among the Emakhosikati. Thus, Nukwase, then Zihlathi, then Seneleleni and finally Dzeliwe became Indlovukazi. Dzeliwe was Indlovukazi at the time of death of Sobhuza II on 21st August 1982. The position of the Monarchy was governed by Chapter IV of the 1968 Constitution.
That Constitution was repealed by the King’s Proclamation of 12th April 1973 but in that Proclamation the King decreed that Chapter IV should again come into force with the exception of sections 28, 31, 32 and 36. This left in force sections 29 and 30 which dealt with the succession to the throne of Swaziland and with the Regent respectively. Section 29 reads: “When an announcement is made to the Swazi Nation in accordance with Swazi Law and Custom that the office of the King is vacant by reason of the death of the holder thereof or any other cause, such person as, in accordance with Swazi Law and Custom, is declared to be King shall become King.”
Section 30 reads: “(1) Until the King has been installed, that is to say, until he has publicly assumed the functions and responsibilities of King in accordance with Swazi Law and Custom, or during any period when he is by reason of absence from Swaziland or any other cause unable to perform the functions of his office, those functions shall be performed, save as otherwise provided in this section, by Indlovukazi acting as Regent. (2) If the Regent is unable for any reason to perform the functions of such office, a person shall be authorized, in accordance with Swazi Law and Custom (hereinafter referred to as “an authorized person”), to perform on her behalf her functions under sub-section (1).” By the King’s Proclamation (Amendment) Decree, 1982 the whole of Chapter IV with the exception only of section 36 was reinstated with certain amendments. T
hus section 28 came back into force as follows: “28 (1) The King of Swaziland is the Head of State. (2) The King may do all things that belong to his office in accordance with Swazi Law and custom and any other law.” and section 30 (2) was replaced with the following (2) The King or, in the absence of a King, the Liqoqo may, at any time appoint, in accordance with Swazi law and custom, a person (hereinafter referred to as “an authorized person”) to perform on behalf of the Regent the functions of her office if the Regent is, for any reason, unable to perform those functions.” Pursuant to section 30 (1), on the death of Sobhuza II the Indlovukazi Dzeliwe became Regent and took on the responsibility of performing the functions of the King’s office.
By section 144 of the repealed Constitution (which was brought back into force by the 1982 Proclamation) “the King” includes any person lawfully performing the functions of the King in accordance with Chapter IV and so Queen Regent Dzeliwe effectively became King. To put matters beyond any doubt Legal Notice No. 95 of 1982 provided: “Consequent upon the death of HIS MAJESTY KING SOBHUZA II on the 21st August 1982, the functions and responsibilities of king shall be performed by INDLOVUKAZI DZELIWE with effect from that date.” Another amendment affected by the King’s Proclamation (Amendment) Decree 1982 concerned the definition of Liqoqo. Section 135 of the repealed Constitution as re-enacted provides that – “The Swazi National Council, which consists of the Ngwenyama, the Ndlovukazi, and of all adult male Swazi, shall continue to exercise its functions of advising the Ngwenyama on all matters regulated by Swazi law and custom and connected with Swazi traditions and culture; and shall exercise such function either in Libandla or in Liqoqo, as the case may be, in accordance with Swazi law and custom.”
“Liqoqo” was defined as – “a council the membership of which is in part elected by the Swazi National Council from their number, in part selected by the Ngwenyama and in part traditionally appointed, and of which both the Ngenyama and the Ndlovukazi are themselves members.” However, by the 1982 Proclamation that definition was changed to – “the Supreme Council of State whose function is to advise the King on all matters of State and which shall consist of members appointed by the King to hold office at his pleasure in accordance with such terms and conditions (including emoluments and allowances as he may determine.” It must be borne in mind that this was merely a definition or description of Liqoqo and it placed no duty or obligation upon Liqoqo nor did it place any duty or obligation on the King either to seek or to accept the advice of Liqoqo. The Liqoqo’s duty was to advise, when called upon to do so, on all matters of State and to appoint an authorized person if the Regent should, for any reason, be unable to perform the function of her office.
Although the king’s Proclamation (Amendment) Decree 1982 was signed by the King on 18th June 1982, no members of Liqoqo were appointed before his death some two months later. But almost immediately following his death a list of names, said to be in the King’s own hand, was produced by the Minister of Justice, Dr Polycarp Dlamini, and on 24th August 1982 Queen Regent Dzeliwe signed a Legal Notice to the effect that the Liqoqo appoints Prince Sozia to be the Authorised Person. Following their appointment the members of Liqoqo met regularly at Egogogweni, a stone’s throw from Endlunkhulu, the Great House in which the Queen Regent Dzeliwe resided; but, according to the evidence of several accused, the Council was practically ostracized by the Queen Regent.
People, said accused number 9, ignored Liqoqo and went straight to the Head of State. He gave as an example of such persons the Prime Minister, Mabandla Dlamini and he added that the Liqoqo found it painful when they were approached for explanations about certain important decisions and were unable to provide any answers. The distinct impression I have from the evidence of those accused who touched upon the matter is that as the months went by and the Queen Regent made clear her preference for other counsel the Liqoqo became more and more resentful.
In particular the members were concerned that they had not been consulted when it was decided to send Crown Prince Makhosetive to school in England and when it was decided to grant certain mining rights. According to those accused who were members of Liqoqo the motivation for their concern was their desire to protect the Queen Regent from any mistakes and to shoulder the blame should there be any criticism: but I rather suspect that the real motive was not quite so pure. Here was a band of strong-minded princes, chiefs and commoners anxious to wield power and influence decisions of State and yet they were being constantly by-passed.
I find it not in the least surprising that the time eventually came when they decided to take action. Before describing the action that was taken mention must be made of two events which occurred in March 1983. Accused one and three, both of whom were members of the Liqoqo, were arrested on a charge of sedition but were released on 21st March 1983 when the Attorney-General refused to give his consent for their prosecution. Three days before their release the Prime Minister was dismissed and accused 2 was appointed in his place.
It seems that his appointment was regarded as a caretakership to last until the Parliamentary elections which were due to take place towards the end of the year. In April 1983, shortly after the dismissal of Mabandla, accused 4, who was Secretary to Liqoqo, delivered instructions to the Attorney-General on behalf of Liqoqo to draft a decree the effect of which would be that the Queen Regent would have to exercise the functions of her office “in Liqoqo”. The Attorney-General accordingly produced a draft (which will be referred to in the judgment as “the draft decree”) which would have added the following subsections to section 30 of the repealed Constitution: - “(3) In the performance of the functions conferred upon her by this section, the Regent shall exercise such functions in Liqoqo.” The effect of this subsection, had it become law, has been subject of some debate and I therefore pause in the narrative of events to decide that question.
The meaning of the subsection is clear. In exercising the functions of King the Queen Regent must consult the Liqoqo. Although the ultimate decision on any matter would remain hers the Liqoqo must be brought into the picture, must be made aware of what was happening and must be given the opportunity of influencing such decision. it would no longer sit idly by in Egogogweni observing other Libandla approaching the Queen Regent and wondering what its business was. The Tribunal has been presented with differing accounts as to who presented the draft decree to the Queen Regent for her consideration and approval. I do not consider it necessary to resolve those differences.
I am content to accept the evidence of accused one that between seven and ten members of Liqoqo took the instrument to the Queen Regent though I would not so readily accept his evidence that she agreed to sign it. If she did express such agreement then in view of subsequent events it was merely a device to give herself time. Having heard the advice of the Liqoqo that she should approve and sign the draft the Queen Regent, as was her undoubted right, decided to take other counsel. It may well be that she took advice from various sources but one particular Libandla to whom she turned was the sons of the late King. Some criticism has been made of this choice of Libandla but I can find no merit in it. While a King might not normally turn to his sons for advice on such a matter this Libandla comprised brothers of the King-designate.
The advice of the Libandla was that the Queen Regent should not sign the decree without further advice from chiefs and lawyers. I now come to 2nd August 1983 on which day Cabinet Ministers, chiefs and others were called by the Queen Regent to a meeting at Ndlunkhulu. The draft decree was read aloud and translated and Arthur Khoza, who was then Principal Secretary in the Ministry of Agriculture, read a speech on behalf of the Queen Regent. This hand written speech has been produced to the Tribunal together with an English translation. The speech begins by acknowledging that the Queen Regent had called the meeting to inform those present of certain matters concerning the election but then goes on to say that there are more important matters upon which she wishes to seek advice and guidance.
There then follows a number of complaints concerning both the appointment and conduct of the Liqoqo with particular reference to the draft decree. The speech states: “I refused to sign the document because Liqoqo in that document in short are demanding to rule the country with me, and with any other King to be installed thereafter.” This clearly overstates the effect of the draft decree as does a later reference in the speech of the Liqoqo “taking over the Kingly power.” Be that as may, the speech then goes on to pose the following question to the gathering: “I wish to know if you require me to sign the document presented by Liqoqo before me? And I wish to know, if I should sign it, whether you won’t accuse me tomorrow of having sold your sovereign power? Should I sign the document?” A note then directs the reader of the speech to “pause for an answer from the Nation” and, presumably anticipating a resounding “NO”, the Queen Regent then proceeds to announce her decision to dismiss the Liqoqo as well as the Minister of Justice, Chairman of the Civil Service Board (Accused One), the Attorney-General and the Principal Secretary in the Ministry of Justice (Accused Four).
From the evidence I have heard of what took place at the meeting it appears that Khoza did not heed the direction to pause and in consequence it is understandable that the audience, or some of the audience, were confused as to what was happening. On the one hand they had been told that advice was being sought whilst on the other no opportunity for giving advice was provided prior to the announcement of a decision. What happened in fact was that a number of people rose to their feet and spoke, including some of the accused, and the decision to dismiss the Liqoqo was criticised.
While in the ordinary course it would be disrespectful to challenge a decision by the Head of State publicly announced, in the confused circumstances of this particular meeting it would, in my view, be wrong to infer that any such disrespect was intended. Those who spoke may well have thought that they were being invited to voice their opinions. This I understand the prosecutor to concede. Much time has been devoted during the hearing to what was said by accused two and I shall return to this in due course.
The meeting at Egogogweni broke up in confusion and although there was an attempt by some to tender an apology to the Queen Regent that did not happen. Witnesses differ as to what took place next. A large body of prosecution witnesses maintained that on the following day a gathering took place outside Egogogweni which included senior members of the Royal Family and chiefs and that a list of names was called of those who should report to Prince Sozisa. Those called then went to Embo State House where a meeting was held and the fate of the Queen Regent was decided. The accused, however, maintain that this meeting at Embo took place almost a week later on Monday August 8th.
In view of the lapse of some five years since the event I do not consider it now possible to say positively whether the fateful Embo meeting took place on 8th August 1983 or earlier though my preference is for the former. The probabilities are that several smaller meetings took place at Egogogweni during the week commencing 1st August at which the events of 2nd August were discussed by various groups. The Embo meeting, which I shall take as having occurred on 8th August, saw the formation of two groups, namely those called to Embo and those who remained at Egogogweni. There is a conflict in the evidence as to what took place at Embo and whether all the accused were present and it will be necessary to consider this conflict in some detail in due course.
However, it is common ground that the decision that Dzeliwe should be removed from office as Indlovukazi and Regent was made at Embo on that day and that this decision was communicated to her. The following day an Extraordinary Gazette was published containing Legal Notices signed by Prince Sozisa revoking Dzeliwe’s Regency and declaring that consequent upon assumption of the Office of Indlovukazi by Ntombi, the mother of the Crown Prince, Ntombi had assumed the Office of Regent. An attempt by or on behalf of Queen Regent Dzeliwe to summon the Nation was thwarted and she then decided to bring the question of her removal from office before the High Court.
A power of attorney was given to Chief Dambuza Lukhele and he instructed Attorney Douglas Lukhele to bring the appropriate application. On 15th August Attorney Lukhele filed an application citing Prince Sozisa, the Liqoqo and the Prime Minister as respondents and seeking a declaration that the removal of the Queen Regent in Legal Notice 58 of 1983 was null and void ab initio and certain other ancillary relief. Opposing affidavits were filed and on 17th August the High Court heard certain preliminary arguments. Judgment was reserved on these preliminary matters until 24th August but on 19th August the King’s Proclamation (Amendment) Decree 1983 was gazetted the effect of which, if legally valid, was to deprive the High Court of jurisdiction to adjudicate upon the application. The Decree was signed by Prince Sozisa, the first respondent to the application and whose power to sign such laws was being challenged in the application, and yet the High Court decided “in the interests of Swaziland” to abide by its terms.
The decision of the High Court not to proceed with the application effectively closed all avenues of challenge to the Queen Regent the police having decided to follow the instructions of the Prime Minister not to interfere and the Defence Force having apparently allied itself with the Embo group. On 4th September 1983, in circumstances which will be examined in some detail, the Queen Regent was escorted from Lobamba to the Royal Residence at Zombodze where she resides to this day. Before considering the evidence led on count one in detail I propose to consider the unsworn statement of accused five which is to the effect that the removal of Dzeliwe as Ndlovukazi and Regent was lawful.
Her statement indirectly received support from some of the other accused. Accused five is the sole surviving sister of Sobhuza II and as such is the Senior Princess in the land. According to her statement she is a member of the Liqunga or Inner Circle which she described as the “body which deals with the secrets of the Royal Household” and which “is in fact the Kingship of the country”. She said that it was the function of the Ligunqa to select and appoint the King. It is a body which has always been in existence where kings are concerned. Accused five described at some length how it came about that Dzeliwe was selected as Ndlovukazi in 1980 and how Sobhuza had instructed her that upon his death the Ligunqa should meet and select as future King a Prince who had not yet reached puberty. She said that the King had given her certain instructions concerning his funeral and had told her that Prince Sozisa should be given charge of these arrangements.
The reason for this was that Dzeliwe, having been taken from Emakhosikati, was “not a complete Ndlovukazi as his grandmother Gwamile”. Dezliwe was to occupy that position on a temporary basis only “just to sweep out the house”. The King, she said, told her they were to pretend that Dzeliwe was the Ndlovukazi and likened her to Likhenya (thatching material) although of poor quality and cut simply to make the structure look sound. Accused five admitted that it was the Ligunqa, and the Ligunqa alone, which had decided to remove Queen Regent Dzeliwe from office. She said that the decision had had nothing to do with the dismissal of the Liqoqo, which was purely incidental, and that long before 2nd August 1983 they had been discussing the matter of her removal and had decided that “they should do what they had been told to do”. She said: “The question I ask myself is who then was supposed to remove the Queen Regent? And who was supposed to know when it was time to do that? Who else except the Ligunqa had been told by the King what would have to be done after he had gone?”
Much time, particularly in cross-examination of prosecution witnesses, was devoted to this particular topic but I can see little point in spending much time on the subject in this judgment. Taking account of all that has been said and written I have reached a very firm conclusion on the matter. I accept that the Ligunqa has existed since time immemorial and that its prime function is the selection of an heir to the throne upon the death of a King. I have no reason to doubt that accused five was a member of the Ligunqa and I am prepared to accept that the role of the Ligunqa was the subject of a discussion she had with Sobhuza II. I am also prepared to accept that the late King used words to describe Dzeliwe as a temporary Indlovukazi.
According to accused five, in 1980 the King was very conscious of approaching death and he must have had it in mind that Dzeliwe would, in due course, hand over the reins of office to a new Ndlovukazi in accordance with Swazi law and custom. However, I cannot and do not accept that Sobhuza II gave any intimation whatever to accused five or any other person that the Ligunqa had the power to remove Dzeliwe from office other than by exercising its function of determining the date of the new King’s installation. Tradition has it that the old Ndlovukazi installs the new King who in turn installs his mother as the new Ndlovukazi. Sobhuza II was a traditionalist and I cannot envisage that he would have been a party to such an unnecessary break from tradition as that described by accused five. Indeed the very suggestion offends one’s sense of reason.
In my judgment, the Ndlovukazi holds office until her death or until a new King is installed and save in either of those two events she cannot lawfully be removed. Accordingly I find that the removal of Queen Regent Dzeliwe in August 1983 prior to the installation of Crown Prince Makhosetive as King was unlawful. I now come to the specific allegations of fact made in the indictment. The first overt act alleged is: “That the Liqoqo prepared a decree changing or transferring the powers of the Ingwenyama to the Liqoqo for the signature of Her Majesty the Queen Regent.” It has been clearly established that the draft decree was prepared on the instructions of the Liqoqo and was presented to the Queen Regent for her signature.
However, the draft decree, had it become law, would not have transferred the powers of the Ingwenyama to the Liqoqo, the only change being effected being the imposition of a requirement upon the Regent to consult with the Liqoqo before making a decision on a matter of State. Even this change could be described as relatively minor because it is generally accepted that traditionally the King rules or governs in Libandla and therefore all that can be said of the draft decree as an innovation instrument is that it restricted the Regent’s choice of Libandla. And even here it has to be noted that the draft decree did not deprive the Regent of her right arbitrarily to change the membership of the Liqoqo.
The second overt act alleged is: “That accused No. 1 and 2 presented the decree to the Queen and Regent for Her signature on many occasions advising Her that it was a good and proper law giving power to her and the future King of Swaziland.” Accused one admits that together with certain other members of the Liqoqo he presented the draft decree to the Queen Regent for signature and I have no doubt that when doing so the Liqoqo advised the Queen Regent either expressly or implicitly that it was a good and proper law. However, why they should have added that it would give power to future Kings when it quite clearly did not even purport to bind a King, but dealt solely with the position of a Regent I do not profess to know. In my view, there is no satisfactory evidence that such advice was tendered.
There is some evidence to support the allegation that accused two presented the draft decree to the Queen Regent but accused two denied knowing anything about it. The evidence in question was given by Inspector Mavis Dlamini who said that accused two came with a document in July or August 1983 and handed it to the Queen Regent who put it to one side. The Inspector said that accused two came on several occasions to ascertain whether the document had been signed but it was not. Eventually the Queen Regent summoned all the sons of the late King and the document was read to them. From this it may be inferred that the document referred to by the inspector was the draft decree.
Accused two was Prime Minister at the time in question and presumably brought many documents to the Queen Regent for her signature. Why Inspector Mavis Dlamini should recall this particular document perplexes me. At the time it could have been of no significance and there was no argument or discussion which might have singled it out. The inspector did not say how she knew that it was this particular document which was read to the Princes. Also, if accused one is right in saying that the Liqoqo presented the draft decree, and I can see no reason for him to lie in this respect, why should accused two present a further copy? In view of the foregoing, I think the inspector must be mistaken. I am not satisfied that accused two presented the decree. The third overt act alleged concerns the meeting of 2nd August 1983. It is alleged that: “Accused No. 2 spoke disrespectfully to Her urging Her to sign the decree. Accused No. 1, 7, 10 and 11 joined accused No. 2 in disputing what she had said. According to Swazi law and custom King’s subjects do not question what the Head of State has said.”
Considerable discussion took place during the hearing regarding the Swazi maxim that a King never lies and the circumstances in which such maxim applies. However, as I have already said, the situation at the meeting of 2nd August was confused by the apparent contradiction in the Queen Regent’s speech resulting from Khoza’s failure to pause at the appropriate moment. Even if accused one, seven, ten and eleven disputed what the Queen Regent had said, and the evidence as to what these particular accused said is rather vague, it would, in my opinion, be wrong to conclude that they intended disrespect. Accused two, however, falls into a somewhat different category.
Prosecution witness after prosecution witness said that accused two behaved disrespectfully. Prince Gabheni said there was an exchange between accused two and the Queen Regent to such an extent that he thought she was not being given due respect. Prince Sulumlomo said during the exchange the accused pointed his finger at the Queen Regent and it was as if he was ordering her to sign. Prince Sobandla described the exchange as heated and frightening. Titus Msibi described the accused as most vocal saying the Queen Regent must sign. Edgar Hillary described him as putting up great resistance. Ben Nsibandze said that the accused insisted that the Queen Regent sign and that he was shocked at his manner of speaking. Prince Nqaba recalled the accused saying “I say sign!” Accused two, however, denied showing any disrespect.
All he did was to give his opinion that the Queen should sign. In my view, the truth of the matter is that accused two as Prime Minister knew all about the draft decree and when he heard that the Queen Regent had decided not only to refuse to sign it but to dismiss the Liqoqo he lost his temper and behaved in a thoroughly disrespectful manner. That he felt free to do so is a good indication of the contempt he had for the Queen Regent, a fact which has considerable bearing on some of his later actions which I shall come to shortly. The fourth overt act alleged also stems from the meeting of 2nd August. It is alleged that accused two opposed the various dismissals which had been announced, that accused one, three, nine and twelve refused to vacate their positions as members of Liqoqo despite the announcement and that similarly accused one and four refused to vacate their positions as Chairman of the Civil Service Board and Principal Secretary at the Ministry of Justice respectively.
Accused two agreed that he told the Queen Regent that he considered the dismissal of Liqoqo ill-advised and it is therefore unnecessary to dwell further on that. As for the question of the Liqoqo continuing to operate, the relevant accused said that it did not meet during the week which followed and in any event on 13th September 1983 the new Queen Regent signed a Legal Notice reaffirming and reappointing the members of Liqoqo with retrospective effect. In the case of accused one he said that immediately after 2nd August the Queen Regent agreed to postpone matters pending an approach by senior members of the Royal Family and so he felt free to continue as Chairman of the Civil Service Board and in the case of accused four he claimed that he had been given similar advice by his Minister Polycarp Dlamini.
There is no evidence that the Liqoqo did meet as Liqoqo during the first week of August 1983 though it would be most surprising if at least some members of this eminent body did not meet at this time to discuss the momentous events of 2nd August. If they did not meet it can be inferred that they were not really concerned about their dismissal presumably because they knew that even if the matter had been postponed for discussion with senior princes and princesses the decision had not been withdrawn and at very least they were under suspension. Accused four’s contention that such a decision of the Head of State is not binding until set out in a signed instrument is not really worthy of consideration. The fifth overt act alleged is the one which really lies at the heart of the prosecution case. It is alleged: “That all accused left Lobamba subsequently assembled at Embo State House and at the meeting the accused decided to dethrone the Queen Regent.” It is convenient at this stage to set out the evidence of Prince Gabheni dealing with the day in question.
He said a number of people gathered at or near Egogogweni including Indvuna Bhembe, the Governor of Lobamba, Chief Sifuba, the Prime Minister and members of the Royal Family. At first Sifuba conducted the meeting but when Prince Sozisa arrived, Sifuba, Bhembe and accused two were sent for. They were away for some time and then Sidumo Shongwe came with a list of people who had to go to Prince Sozisa. It was decided that the people on the list should go to Embo State House for a meeting. Prince Gabheni said that he was not happy that the gathering was being split into two in this way but he decided to answer the call and drove to Embo with accused one.
On arrival at Embo Prince Sozisa declared the meeting open and said that accused five had a report from Prince Mshoshi, an elderly and senior prince. Accused five then reported to the effect that the mother of the Crown Prince, LaThwala, be installed as Ndlovukazi. Prince Gabheni said that all the accused were present at Embo and the wrong which the Queen Regent was said to have done was her dismissal of the Liqoqo. The group, he said, did not know how she could govern the country without Liqoqo. The first speaker at the meeting was Prince Sozisa and the second was Chief Tsekwane who said that the mother of the Crown Prince should be given her rightful position. Prince Gabheni was subjected to a very lengthy and exhausting cross-examination but curiously hardly any of the accused spent much time questioning him about his evidence of the Embo meeting of 8th August or in challenging his testimony.
For instance, accused one’s cross-examination lasted for almost five hours but the only respects in which he challenged the Embo account were when he put it to the witness that he had not gone into the meeting and when he asked him if he was sure that the two Defence Force Chiefs had been present in uniform. Prince Gabheni was positive that he had attended the meeting but accepted that he might have been mistaken as to the presence of the two soldiers. Accused two also cross-examined at length but did not touch upon the Embo meeting.
Although accused three asked a few questions about the meeting he did not challenge the account given. Nor did accused 5, 9, 10, 11 or 12. Prince Gabheni accepted that accused four had remained outside but in answer to accused seven he said it must have happened after he had left if the sons of Sobhuza II were ordered outside just leaving senior princes. With regard to accused six he said he could not recall any occasion when she was present after the “misunderstanding” between the Queen Regent and members of the Royal Family which could, of course, embrace the Embo meeting of 8th August. Prince Gabheni was the only prosecution witness to deal directly with the Embo meeting of 8th August but Prince Sulumlomo, Prince Sobandla, Prince Myingwa and Inspector Mavis Dlamini also gave evidence relevant to it.
Prince Sulumlomo’s evidence ties in with that of Prince Gabheni in that he said that upon his return from Embo Prince Gabheni told them that some people had been sent to old Prince Mshoshi and that his reply had been that the Queen Regent could be removed and replaced by the mother of the Crown Prince. He said that during the same month, not necessarily the same day, a group of people led by Prince Sozisa came from the direction of Embo and entered the enclosure at Endlunkhulu. Prince Cetshwayo went to see what was happening and when the group emerged they were shouting “Umfati, Umfati” (woman, woman). All the accused with the possible exception of accused 3 and 9 were in the group and he recalled that accused 1, 5, 8 and 11 were among the chanting. I
n cross-examination he added accused 4 to this list and said that they were shouting “a woman had stood up and left them.” Prince Sobandla also referred to a group of persons coming from Embo to see the Queen Regent at Endlunkhulu and said that the group included Prince Sozisa, accused 5 and other senior members of the Royal Family. Inspector Mavis Dlamini also recalled an occasion after 2nd August when the Queen Regent met a number of people including accused 1, 2, 4, 8 and 10 but she and other women police officers were then asked to leave.
As for Prince Myingwa his memory of events was so vague I do not propose to deal with his evidence. Phillemon Nsibandze who was at the time Deputy Commander of the Police College said he and other senior police officers were at Lobamba on 8th August and he saw a group of people going to Endlunkhulu. The group included accused 1, 2, 5, 6, 8, Prince Khanyakwezwe, Mavandlakazi, Hhobohhobo and others. He crept up to the side of the enclosure to listen and was able to hear accused 8 telling the Queen Regent that she was being dismissed because she had done mischief by arresting Bhunu – “You are doing what we did not tell you to do when we brought you here.
This is why we are removing you. What is it that you have against Mfanasibili?” Phillemon said he reported to the Commissioner of Police and the Deputy Commissioner who were on the spot that an offence had been committed and that the people in Endlunkhulu should be arrested but the Deputy Commissioner was reluctant to take such a step because of the presence of many soldiers. Phillemon was of the view that unless immediate action was taken any later attempt would be thwarted and, he said, events proved him right. Strangely enough neither the Commissioner nor the Deputy Commissioner mentioned this incident when they gave evidence. I now turn to the evidence of the accused when dealing with 8th August 1983. Accused 1 testified that he went to Egogogweni on 8th August and agreed that his was one of the names on the list. He and Prince Gabheni went together to Embo but it was apparent to him that Prince Gabheni was reluctant to go. On arrival he left Prince Gabheni and reported to Prince Sozisa that he had a Civil Service Board meeting at Mbabane but would return later.
He then left and spent the morning in Mbabane. When he returned in the afternoon he found that the meeting had dispersed and he then went to Endlunkhulu. There he was told that the elders were inside with the Queen Regent and he waited. Eventually Prince Sozisa, Sifuba, Mshelevu, Bhembe, accused 5, 8 and possibly two other princes emerged and Bhembe informed them that the message from the members of the Royal Family had been taken to the Queen Regent concerning “what they had prepared” and the Libandla should meet again at Embo the following morning. Someone told accused 1 that the Queen Regent had been removed and replaced by LaThwala but he could not remember who. Accused 2 agreed that he was one of those called by Prince Sozisa on 8th August and that a list of names was drawn up.
At Embo Sifuba and Bhembe explained what had happened on 2nd August and the Liqoqo was then asked to give its explanation of the draft decree. Princes Makhungu and Sifuba explained the Liqoqo’s position on the matter and then it was said that a message had been received from Prince Mshoshi. This message not for general consumption but for the ears of Ligunqa only and of which Prince Mshoshi was a member. Those who were not members of the Ligunqa therefore withdrew and when the meeting was later resumed they were told that the Ligunqa had discussed the matter “and they had concluded that what they had agreed upon would be taken to the Queen Regent.”
The Ligunqa then suggested that everyone should go to Lobamba and on arrival there the members of the Ligunqa and certain other older persons went into Endlunkhulu. When they emerged it was decided that “ordinary” people should disperse and return the next day while the elders, including accused 2, should return to Embo. There they were told what had been said to the Queen Regent, namely that they had allowed her to take a rest and had installed LaThwala and that was the function which had been entrusted to them by the late King. Accused 3 also accepted that he was one of those called to Embo on 8th August and he agreed with the evidence of accused 2 that Prince Sifuba explained what had happened on 2nd August.
When Prince Sifuba had done so, he said, they decided that the bulk of those present should go out leaving only the elders inside to deliberate. Later they were told to accompany the senior members of the Royal Family to Endlunkhulu where these members went to speak to the Queen Regent. Accused three returned to Embo with the group where, he said, they were informed that the Queen Regent had been told that the position of Regent was being taken over by the mother of the Crown Prince. Prince Sozisa then called accused 4 and he was told that he and others should go and do the Western part, namely gazette the removal. Accused 4 said he was called to Embo by Prince Sozisa during the morning of 8th August and arrived there at about 9 a.m.
He said he remained outside for some time but then decided to go back to his office in Mbabane and sent a message to Prince Sozisa to that effect. He returned in the afternoon at about 4.30 p.m. Prince Sozisa called him and instructed him to inform the Attorney-General that the members of the Royal Family had removed the Queen Regent and had appointed the mother of the Crown Prince in her place and that it had to be put right according to law. Accused 4 did as he was instructed and the Attorney-General drafted the necessary notices which accused 4 then took back to Embo. There the name of the new Queen Regent was filled in, the documents were typed and Prince Sozisa signed them. The prince said he wanted the gazette published the next day and that is what happened. Accused 4 denied going to Endlunkhulu at all that day.
Accused 5 admitted that she was one of the Ligunqa and that she was one of those responsible for the removal of the Queen Regent. She said of her co-accused that they had nothing to do with the removal but as she only made an unsworn statement this assertion was never tested in cross-examination. Accused 6 denied that she was at Embo on 8th August. She only arrived there the following day. Accused 7, in an unsworn statement, admitted that he was one of those called to Embo on 8th August but, he said, at the time he had no idea why. As with accused 2 and 3 he said that Prince Sifuba gave an explanation of what had happened on 2nd August but he could not recall Prince Tsekwane having spoken as was stated by Prince Gabheni. He said Prince Sozisa then ordered everyone out except those responsible for selecting Kings and he left and walked back to Lobamba.
At Lobamba he took his car and drove back to Mbabane. Accused 8 elected to remain silent and called no witnesses. Accused 9 denied that his name was on the list of those called to Embo but as the group was moving off he was asked to joint it. At Embo Prince Sozisa asked why he was required and Bhembe told Prince Sozisa what had happened. Prince Sifuba then explained about the draft decree for the benefit of those who knew nothing of it and Prince Sozisa then asked all but those who were responsible for selecting Kings to leave while a message from Prince Mshoshi was received.
Accused 9 and others waited outside for a long time and then they were called back in and were told they were going to the Queen Regent in connection with some work they had been doing. They all then went to Lobamba where members of the Royal Family saw the Queen Regent. Those he recalled seeing the Queen Regent were Sozisa, Tsekwane, Sifuba, Accused 5, Bhembe, Mshelevu and accused 8. They all then went back to Embo where Prince Sozisa told them that they had been to the Queen Regent “to relieve her of her burden and to place this on Queen LaThwala”.
Because it was already late a more lengthy explanation would be given the next day and accused 4 was then called and given instructions to go and prepare the necessary instruments. It was after dark when accused 4 returned with them. Accused 10 was at the time a major in the Umbutfo Defence Force and amongst other duties was in charge of the Royal Guards at Egogogweni. He resided at Embo. he denied that he participated in any of the events which took place at Embo on 8th August. Accused 11 is a Ndvuna and the Governor of Old Lobamba. He said that the only occasion he went to Embo during the period under consideration was when the police told him that the Governor wanted him there.
He went there and reported his arrival to the Governor who in turn reported to Prince Sozisa. This was at about midday. Prince Sozisa then told him that it had been decided to remove the Queen Regent and replace her with LaThwala and as the Governor of one Royal Residence accused 11 had to know this. The accused said it was not the first time he had been summoned to be imparted such knowledge: it had happened when both Seneleleni and Dzeliwe had become Ndlovukazi. The day in question was, he said, 9th August. In an unsworn statement accused 12 spoke in general terms of what happened on 8th August and apparently seeks to disassociate himself from those happenings. He said that the selection of a King is a secret of those responsible and the removal of the Queen Regent was similarly a matter of secrecy known only to those responsible.
That Libandla, he said, could not have included people such as himself. “Even those were sent to do certain things only did so after the people responsible had come to decisions.” To summarise, accused 1 admitted to being at Embo and Egogogweni on 8th August but attended neither of those two meetings which took place. Accused 2, 3 and 9 admitted being at Embo and Egogogweni but maintained that they were excluded from the vital part of the meetings which took place. Accused 4 admitted to being at Embo but not at Egogogweni. Accused 7 admitted to being at Embo not at Egogogweni and maintained that he was excluded from the vital part of the Embo meeting. Accused 8 remained silent.
And accused 12 was non-committal. In his final submission accused 1 was highly critical of Prince Gabheni as a witness. He pointed to conflicts between his evidence and that of Titus Msibi regarding the circumstances in which the Crown prince came into Prince Gabheni’s custody after the death of Sobhuza II and also in dealing with his role in making arrangements for the Crown Prince to go to school in England. He pointed to a conflict between Prince Gabheni’s evidence and part of the contents of Cabinet Minutes dated 23rd Auguat 1983. There was, he submitted, a conflict between Prince Gabheni and Prince Majahane as to how the latter had been summoned to the Queen Regent in August 1983.
And Prince Gabheni had conveniently forgotten the prophecy of an Indian prophet made in 1983 that King Mswati II wanted a more experienced Prince to become King. This prophecy, if it can be called such, was verified by Prince Mahhomu when he gave evidence and accused 1’s suggestion is that Prince Gabheni has refused to recall it because he was at the time one of the contenders for the throne. Accused 1 is perfectly correct in saying that these and other conflicts exist in Prince Gabheni’s evidence when the witness was dealing with what may be termed peripheral matters. The question is, however, whether it follows that the witness must be regarded as unreliable when dealing with more fundamental matters such as happenings at Embo State House on the morning of 8th August 1983.
The kind of matter which form the basis of the accused’s criticism may be put down to faulty recollection or mistake and, in my view, the only real criticism is that the witness failed to qualify his answers by saying he was not sure. When it comes to 8th August, however, and in particular whether the question of the removal of the Queen Regent was openly discussed at Embo meeting, it seems to me that no room for mistake exists. Either the matter was openly discussed or it was not. Either Prince Gabheni is lying or not. It is said of Prince Gabheni that he has a motive for lying in that he was removed both from Cabinet and from the Liqoqo following the removal of the Queen Regent because he opposed the removal.
I bear that in mind. But one major difficulty I have with the accused’s contention that Prince Gabheni’s account of the Embo meeting is fabricated is that this was never squarely put to him. Despite accused 1’s suggestion to him that he was not even at the meeting it is generally accepted that Prince Gabheni was indeed there so why not challenge his account if it was false? One answer, and a compelling one, is that at the time Prince Gabheni gave his evidence in November last year the accused had not yet decided upon what their defence was to be.
Prince Gabheni’s account of the Embo meeting, while not actually corroborated, does receive some support from what he told Prince Sulumlomo when he returned to Egogogweni. If, as the accused maintain, the message from Prince Mshoshi was not disclosed to the meeting why should Prince Gabheni inform Prince Sulumlomo that Prince Mshoshi’s reply had been that the Queen Regent could be removed and replaced by the mother of the Crown Prince? I can see no reason whatever for Prince Gabheni to have made this up. The foregoing consideration lead me to the firm conclusion that the Tribunal can safely accept Prince Gabheni’s account as reliable and accurate and that of the accused a fabrication.
Although I do not consider it would be safe to accept his evidence that accused 6, 10 and 11 were at the meeting in view of their denials and the difficulty any witness has of recollecting precisely who was at a meeting held over four years ago, in the case of accused 1, 2, 3, 5, 7, 9, and 12, none of who denied they were there and most of whom admitted they were, I find as a fact that they were at a meeting at which the removal of the Queen Regent was openly discussed and agreed upon. Accused 1 may have gone to a Civil Service Board meeting later in the morning but I have no doubt he was present during the vital part of the meeting. Turning to the march to Endlunkhulu to announce the decision I am satisfied that accused 2, 3, 5, 8, 9 and 12 were amongst those who went and I am satisfied that their purpose in doing so was to demonstrate their support for the decision publicly.
Although Prince Sulumlomo included accused 1, 4, 6, 7, 10 and 11 his recollection of who was there was obviously shaky – he could not recall accused 3 and 9, for instance, although these two admitted they were there, - and I am not satisfied that any of these were on the march. I also find the evidence of Phillemon Nsibandze open to some doubt when it includes accused 6 as one of those present particularly when it is considered that that part of his evidence received no support from his two senior officers who, according to him, were also present. However, accused 1 admitted he went to Endlunkhulu that afternoon and in view of my finding that he well knew what had been decided earlier in the day the only reasonable inference to be drawn is that he was also anxious to demonstrate his support.
To sum up my findings on the fifth overt act alleged in the indictment, while the ultimate word on the removal of the Queen Regent may have been left to people such as Prince Sozisa, Sifuba, Tsekwane and accused 5 I am satisfied that the decision would not have been much had it not been supported by those at the meeting and accused 1, 2, 3, 8, 9 and 12, all of whom later openly demonstrated their support, can in my judgment be safely regarded as acting in concert with them with a common purpose and must have ensured, or must be deemed to have agreed, to share that purpose. The sixth overt act alleged concerns accused 5 alone and is – “That accused No. 5 refused to meet the Princes and Princesses who were against the move to dethrone the Queen and Regent. In her position as a Senior Princess it was her duty to listen to them and explain what was happening.”
Apparently this is a reference to what happened on 9th August 1983. Accused 5 does not deny that on that day she arrived at a gathering of Princes and princesses at Endlunkhulu and was asked to see the group at Embo with a view to arranging a meeting between the two factions. Prince Thunduluka said that accused 5 was positively rude about the Queen Regent saying “This woman does not listen yet she has sold the country” but no reference was made to such words being used when Prince Sulumlomo, Sobandla, Nqaba and Maquba dealt with the occasion in their evidence. In view of this it would be unsafe to find that accused 5 spoke in such a manner.
However, accused 5 could have explained what had happened but chose not to do so and it is obvious that she was not in the least interested in trying to reconcile the two groups. The seventh overt act concerns accused 2 only and appears to be based on the evidence of Prince Myingwa as to what happened on a certain occasion when he was summoned to see the Queen Regent. This witness’s evidence was vague in the extreme and I find it difficult to pinpoint the occasion he describes in the general chronology of events. This allegation is, in my view, best ignored. The eighth over act alleged is that – “On 9th August 1983 a gazette removing the Queen Regent was published and it was distributed among the people at Lobamba and Embo, Accused No. 2 told the police not to arrest anyone as the dethronement was sanctioned by the meeting at Embo. At the instruction of Liqoqo and accused No. 2 all Royal Guards were removed from the Queen and Regent.”
I have already set out the account given by accused 4 of the drafting and gazetting of the Legal Notice removing the Queen Regent from office. On 9th August, still following instructions, he took some copies of the gazette to Embo where he handed them to Prince Sozisa. The evidence strongly suggests that accused 4 was not involved in any decision making on 8th or 9th August 1983 but was merely being used as a means of giving effect to the decision. He contends that he had no option but to obey instructions and this contention and his position generally will be considered later. The Commissioner of Police, Titus Msibi, said that at the time of the removal the police were supporting the Queen Regent but his endeavour to enlist the support of the Defence Force failed. Colonels Dube and Ndzimandze refused to listen to him.
Then on the evening of 9th August he and his Deputy were called to Nkhanini by accused 2 and told that he had heard a high treason investigation had begun but that the police officers should close their law books – the matter was being dealt with under Swazi law and custom. Msibi said that accused 2 was speaking with the authority of a Prime Minister who was also responsible for the police force. Msibi said that he was then called to Embo where he found members of the Royal Family and the Liqoqo. He said all the accused with the possible exception of accused 9 were there and Prince Sozisa instructed him to remove all police escorts from Dzeliwe and no longer to raise the Royal Standard at Lobamba. It does not appear that any of the accused challenged this latter piece of evidence and accused 2 agreed in his evidence that all the accused were at Embo on 9th August. However, he thought the orders not to arrest anyone and not to fly the Royal Standard were given on a later day. That may be the case.
The ninth overt act alleged concerns accused 2 only. It is alleged that he stopped a meeting called by those who opposed the dethronement and who wished to inform the nation that the accused were responsible: that the Nation was instead informed of the removal through the news media, accused 2 admitted that he had prevented the meeting referred to from taking place but said that he was merely following the instructions of Prince Sozisa who spoke on behalf of the Libandla and the Head of State. The tenth overt act alleged concerns accused 10 alone. The prosecutor was obliged to concede that there was not a shred of evidence adduced in support of the allegations made. The eleventh overt act alleged is that – “On 4th September 1983 the Queen and Regent was removed by the accused from Lobamba. She was removed during the night.
The orders were from the accused at Embo where they held their meetings. Accused No. 10 was in charge of Umbutfo Defence Force who supervised the removal.” The removal of the Queen Regent from her official residence at Lobamba was an obvious sequel to the events of 8th and 9th August. It was the completion of the ouster of the Queen Regent and, says the prosecution, the final indignity to be inflicted upon her. A number of witnesses have described what took place on 4th September and the details have varied from witness to witness. Broadly speaking, however, there was substantial agreement with the account given by Sotja Dlamini who is now Prime Minister but who was at the time Assistant Commissioner of Police. Sotja said he arrived at Embo State House at about 4 p.m. in response to a call from Governor Bhembe.
A crowd of people was waiting outside the guest portion and sometime later someone shouted for the Libandla, himself and two other police officers, Superintendents Zungu and Nxumalo, to go inside. Accused 1, 2, 5, 6, 8, 10, 11, 12 and Prince Khanyakwezwe were all inside. There were others, he said, but those were the ones he remembers. As they all sat down the police officers were introduced and accused 6 enquired why the police were there. He then recalled that accused 3 was also present and had supported accused 6 in her enquiry.
The Governor replied that the police were there to do their duty and after some discussion the police were permitted to remain and the talks began. Sotja said that accused 8 was the first to speak. He said: “Members of the Royal Family the time has come for the Ndlovukazi to leave Endlunhkhulu Great Hut and put down the regalia.” He said that she had remained there for about a month after she had been removed from her position and was still wearing the regalia. Accused 5 then supported accused 8 by saying, “Indeed she must get out today and put down the regalia.” Other people expressed similar views and, said Sotja, three members of the Royal Family were chosen to go and get her out and see that she put down the regalia. These were Prince Khanyakwezwe, Lokhakhi and accused 12.
These three, accompanied by Bhembe and followed by the police officers, then proceeded to Endlunkhulu. On arrival the four emissaries went inside together with Zungu and Nxumalo while Sotja remained outside. The story is then taken up by Nxumalo. He said once inside Prince Khanyakwezwe told the Queen Regent that they had been sent by the elders to order her to remove the regalia. This the Queen Regent refused to do saying that according to custom they must be handed to someone. Accordingly the group returned to Embo. According to Sotja, at Embo the first to react to the report was accused 5 who shouted that the group should go back and tell the Queen Regent to put down the regalia. “She came to marry here. She should not give us orders as to whom she should give the regalia.” Others supported accused 5 including accused 6 who said “This is a married woman: what is it that we hear of this witch?”
The group thereupon returned to Endlunkhulu, Nxumalo made no mention of accused 5 or 6 intervening, contenting himself with saying that it was difficult to say who gave the order to return but the principal spokesman was accused 8. Zungu also mentioned accused 8 as the only person to react to the report. The group had no greater success in persuading the Queen Regent to remove the regalia on their second visit to Endlunkhulu and once again they returned to Embo. On this occasion the Queen Regent had pointed out that it was getting late at night and had asked where she should go and when the group returned to Embo they passed on that question.
Sotja said that the people at Embo were upset and angry and he recalled accused 8 referring to his army days when no one could have refused to take an order. He also recalled accused 5 saying that if she refused to go what had befallen LaMgangeni would befall her. In other words she would be killed. She also called the Queen Regent a barren woman. None of this, was however, recalled by either Nxumalo or Zungu. Nxumalo said that he thought it was accused 2 who said that the King had many houses and she could choose. According to Sotja the emissaries were successful on their third visit to the Queen Regent and the Queen Regent finally emerged. According to Nxumalo, a further return trip to Embo was necessary before the Queen Regent agreed to leave and according to Zungu only two trips to Endlunkhulu were necessary.
This demonstrates the difficulty witnesses have in recalling with any precision events which occurred so long ago and underlines the caution the Tribunal must exercise before accepting any evidence as to matters of detail. However, all were agreed that the Queen Regent finally left late at night and was driven to Zombodze. Evidence was also given as to the presence of members of the Defence Force in the vicinity of Endlunkhulu that night. Apparently the police had heard that there was a threat to the life of the Queen Regent and they understood that this threat would be carried out by the Defence Force. Phillemon Nsibandze painted a very dramatic picture of armed soldiers arriving, of a squad of police being deployed into defensive positions and the captain in charge of the soldiers cursing their bad luck that the police had taken control.
Sotja said he saw a group of soldiers come from behind the huts at the Royal Residence but he added that there was no indication that there might be violence although he had heard of the threat. Zungu simply said he saw a group of soldiers being marched and Nxumalo said he did not notice any soldiers at all. There is no allegation in the indictment of any plot to assassinate the Queen Regent and I do not propose to lengthen this judgment unnecessarily by dwelling unduly on what soldiers were doing at or near Endlunkhulu on the night of 4th September 1983. Phillemon Nsibandze has, I think, over-dramatised the situation and although the police may have feared a threat nothing untoward in fact took place.
The captain in charge of the soldiers, Captain Mkhaliphi, said that accused 10, who was in command of the Royal Guards, had ordered him to take five soldiers to Balondolozi residence and remain there doing nothing. Accused 10 said this was incorrect and what he had in fact done was to relay an order from the Defence Force Commander that all soldiers should be removed from Endlunkhulu for the sake of appearance and to distance the Defence Force from what was going on. At the end of the day I find the evidence led on this aspect of the case too confusing and at odds to reach any firm conclusion and in view of the burden which rests on the prosecution of proving its case the right course would be to say that accused 10’s account has not been disproved.
Returning to the actual physical removal of the Queen Regent from Lobamba there is a sharp conflict between some of the accused and the prosecution witnesses as to whether they were at the Embo meeting at all on 4th September. Accused 3, 4, 7, 9, 10 and 11 all denied that they were present although accused 10 admitted that he was in the Embo area as that was where he lived and that he did pass on the order for guards to be removed and that he did organize transport for the Queen Regent. Royal transport was one of his responsibilities. Of these accused, Sotja said, accused 3 was present although this only emerged later in his evidence. Nxumalo said accused 7 and 10 were present and Zungu said accused 3, 4 and 9 were among those present. Strangely, this witness said he did not see Sotja at all that evening although everyone else who touched upon the matter was in agreement that Zungu accompanied Sotja throughout.
This again is a sure indication of how time can erode a witness’s memory and make his evidence unreliable. In all the circumstances I am not satisfied to the high standard required by criminal law that accused 3, 4, 7, 9, 10 and 11 were present at the Embo meeting of 4th September. Turning to those who on their own admission were there we find again the theme which had been constantly recurring throughout this trial, namely that they were there simply on instructions and cannot be held personally responsible for anything that happened. It is I think ironical that accused who embarked on their evidence by saying that they wanted the Queen Regent to take State decision in their presence “In Liqoqo” so that they might take the blame should anything go wrong should be heard later in their evidence to disclaim responsibility for anything that was decided at any of the Libandla they attended at which the removal of the Queen Regent was discussed.
The twelfth overt act alleged is that – during the course of the removal from Lobamba accused No. 5 and 6 insulted Her, called her a witch and barren woman.” The allegation finds support in the evidence of Sotja who testified that when the emissaries returned on the first occasion accused 6 said “What is it that we hear of this witch?” and when they returned a second time accused 5, after making a veiled threat, referred to the Queen Regent as a barren woman. The difficulty I have with the twelfth allegation is that Sotja’s evidence stands alone whereas if it is correct it could be expected that both Nxumalo and Zungu who were present with him would have testified on similar lines. Sotja described accused 5 as shouting angrily and although a mere insult may not have registered on the mind of those present I think a threat such as that described would have.
While I do not reject Sotja’s evidence I am not prepared to act on it having regard to the circumstances just described. The thirteenth overt act alleged concerns the application brought by the deposed Queen Regent in the High Court. It is alleged that not only did the Liqoqo and accused 2 oppose the application which sought a declaration that her removal was null and void ab initio but that subsequently they were instrumental in stopping the High Court from hearing the application. There can be no doubt that the respondents to this application did determine to oppose it and an affidavit was filed on their behalf by Prince Charles, the Judicial Commissioner.
The affidavit was, if I may say so, positively misleading. Prince Charles deposed that the Ndlovukazi is not a fixed person “but is from time to time appointed in accordance with Swazi law and custom by the Council of Senior Members of the Royal Family….” He went on to say that – “The said Council of Senior Members of the Royal Family has according to Swazi law and custom the power at its pleasure to remove from office an Ndlovukazi previously appointed by it and to appoint another Ndlovukazi in her place.” Not even the accused before this Tribunal have been bold enough to support such a far-reaching statement and in my view the affidavit of Prince Charles was not only irresponsible but in all the circumstances must be regarded as dishonest. The application to the High Court gave accused 2 and those in position of power who had supported the removal of the Queen Regent a final opportunity for a change of heart. Unfortunately, that opportunity was not taken.
Instead they were not even prepared to allow the merits of the case to be examined. In my view, they must have realised that rash statements such as those contained in Prince Charles’s affidavit would not stand up to scrutiny. They hastily prepared King’s Proclamation (Amendment) Decree 1983 purporting to remove the jurisdiction of the High Court to hear the case. As the Chief Justice of the day said when it was announced that no judgment would be delivered, the rule of law in Swaziland had been considerably cut down. Whilst there is no evidence that the Liqoqo as a body met to discuss the proceedings there is evidence, which I accept, that individuals such as accused 1 and 2 were actively involved.
The fourteenth and fifteenth overt acts alleged concern public meetings which were held at Lobamba in October 1983 the clear purpose of which was to rally support for the actions which had been taken to remove Queen Regent Dzeliwe. The prosecution relies on speeches made by accused 1, 2, 3, 7, 9, and 11. This judgment is long enough without considering these speeches, in any detail. In a speech delivered on 13th October 1983 accused 1 cautioned the Chiefs and Indvunas not to take a stand against what had been decided for if they did so they would be punished. He stressed that LaThwala was now the Ndlovukazi and asked the audience to watch carefully for anyone who spoke of a different Queen Regent. On the same day accused 2 delivered a speech in which he admonished the audience to avoid any seditious acts against the present regime and made a point of referring to those who had been detained.
On the following day accused 3 made a speech bitterly criticizing those responsible for challenging the removal of the Queen Regent in the Courts. On 13th October accused 7 delivered a speech in which he reviewed events since the death of Sobhuza II and made certain complaints concerning the deposed Queen Regent and those who had supported her. On 14th October accused 9 made a speech in which he criticized those who had taken the matter to the High Court. On 13th October accused 11 also made a speech the contents of which I shall come to shortly. The accused admit making these speeches but to a man they say that they did so on instructions.
They were called to Prince Sozisa and told not only that they would have to speak but were schooled in what they had to say. I am prepared to accept that it was Prince Sozisa who decided who the speakers should be and I am also prepared to accept that Prince Sozisa may have indicated to each accused the subject on which he should speak. However, I do not accept that the speeches reflected anything other than the accused’s personal views. That, in my opinion, is best illustrated by making reference to the speech delivered by accused 11. From what I have seen of accused 11 the likelihood is that he was chosen to speak because of his skill as an orator. Having listened to the manner in which he delivered his speech it was clearly delivered with zest, enthusiasm and passion. Having read the transcript of his speech I am not in the least persuaded that it was rehearsed. In my judgment, accused 11 was voicing his own opinion on subjects which may have been given to him but what he said he meant.
The speech was a bitter denunciation of the deposed Queen Regent. He accused her of obduracy and stubbornness. She refused to listen to advice, he said. She had the gall to regard herself as superior to her in-laws, the members of the Royal Family. Without the Liqoqo there is no one in charge of the country and the country would be exposed to enemies. All the good work performed by Sobhuza II was being done away with. Accused 11 was cross-examined at length about this diatribe but he refused to recognize it for what it is. I simply do what I am told to do, he said; and he declared that he could not know what people might have thought on listening to his words. His answers were evasive in the extreme and I can place no reliance on them.
The sixteenth overt act alleged concerns a meeting when it is alleged accused 2 addressed members of the Cabinet, the Civil Service, the Army and the police and told the audience not to pay allegiance to the deposed Queen Regent and warned them not even to discuss the matter. There is no evidence that the accused told the meeting in terms not to pay allegiance to the deposed Queen Regent but that that was his intention is a clear inference to be drawn from what he said. According to Khoza, for example, the accused said that those present should not involve themselves in Lobamba matters. All they had to do was to carry out instructions from Lobamba whether they thought the instructions foolish or not.
¨Anyone wanting an explanation should come to him and anyone who could not bear the situation should take his coat and go home. They should not argue with the Liqoqo. The accused did not deny saying this. He said he was merely explaining which way the Government was facing. That the Government was facing away from Dzeliwe is abundantly clear. The seventeenth and last overt act alleged is that: “Accused 1 and 2 and Liqoqo instructed Advocate Zeiss and Attorney Matse to draft laws which would change the structure of Kingship or powers of the King in the Kingdom of Swaziland. In doing so they used the Tibiyo Fund which belongs to the Head of State.” This allegation is obviously inserted to support the second limb of the conspiracy alleged earlied in the indictment and at one stage I experienced some difficulty in understanding precisely how the prosecution case was being presented and whether under the umbrella of one conspiracy it was in fact alleging two.
¨The matter was, however, clarified by the prosecutor during the final submissions when he said that it was not an ”and/nor” situation. In so far as accused 1, 2 and Liqoqo were concerned (i.e. those mentioned in paragraph 17) their plan to alter the structure of Kingship was really an extension of the overall plan to depose the Queen Regent. The removal of the Queen Regent was necessitated by her refusal to fall in with the Liqoqo’s plan to oblige her to involve the Liqoqo in matters of State and following the removal the Liqoqo planned to consolidate its position by altering the Constitution. Seen in this light I do not consider it necessary to spend much time on this aspect of the prosecution case.
Three documents found at the Liqoqo’s offices are strongly relied upon by the prosecution. The first headed “draft Consolidation of Essential Constitutional Provisions and Proposed Amendments” apparently drafted by Advocate Zeiss (who appeared for the respondents in the Queen Regent’s application) on the instruction of Matse Earnshaw and Malinga, attorneys-at-law. It appears from documentation that this firm of attorneys received its instruction from “Prince Sozisa and Others” and it would not be unreasonable to infer that this is a reference to the Liqoqo. The second is headed “Directive on Guidelines on Liqoqo” and is dated 19th January 1984 and is signed by Prince Sozisa. T
he third is a tabular depiction of the Government of the Kingdom of Swaziland and is undated. Accused 4 admits that he wrote a minute to accused 2 dated 13th December 1983 advising him that – “The Senior Legal Counsels (sic) have now completed consolidation of all the existing decrees and harmonizing whatever anachronism that may have existed. The completed assignment received the approval of Liqoqo last Thursday morning and a directive issued that the bill of E10 640.00 be met through Tibiyo in view of the fact that Constitutional matters vest in the Head of State. I have discussed the matter with the Hon. minister for Finance who advised that the bill be transmitted to you for timeous attention.”
Accused 4 signed this memorandum as Secretary to Liqoqo. Accused 4 said on oath that the Liqoqo approved the Consolidation and that the whole exercise of consolidation was undertaken on the advice of senior counsel who considered that there were “flaws and loopholes” in the laws and that they were contained in so many different instruments that there was difficulty in piecing them together. This so-called consolidation purported not only to consolidate certain proclamations but also to effect certain amendments.
The most noteworthy of these are as follows. Section 28 of the repealed Constitution, which has been set our earlier, was to be repealed and replaced with the following – 28 (1) it is hereby reaffirmed that the traditional administration of Swaziland shall, according to Swazi Law and Custom, embrace the following offices and bodies: (a) The Monarchy consisting of: (i) the office of the Ngwenyama, King of Swaziland; (ii) the office of the Indlovukazi; (iii) the office of Umftwana (Crown Prince) at times where there exists no duly installed King; (b) The office of Umntfwanenkhosi Lomkhulu; (c) The Liqoqo (Supreme Council of State); (d) The Emalangeni (Princes and Princesses); (e) The Libandla 9”) The King of Swaziland is the Head of State. This amendment would have divided the Monarchy (or the Government of the State) into five constituent parts of which the King would be Head. However, the last two constituents – namely the Emalangeni and the Libandla are capable of so wide a meaning that they are practically beyond recognition.
Even the definition of “Libandla” as a meaning “a Council consisting of advisers of the Ngwenyama and of representatives of the Swazi nation…) was repealed. Section 30 (2) of the repealed Constitution, also set out earlier, was to be repealed and replaced with the following: “30 (2) The Indlovukazi shall, if, as soon as, and as long as, any of the circumstances set forth in subsection (1) supra prevail, automatically and without any act of appointment or installation be as necessary be or deemed to be regent. (3) It, as soon as, and as long as any of the circumstances set forth in section 30 subsection (1) supra prevail, any Decree, Rulings and other acts whatsoever, done by the Umntfwanenkhosi Lomkhulu, in accordance with Swazi law and Custom shall be deemed to have been done by the Regent and shall have the same force and effect as if they had been done by the Regent.” Finally, the term “Authorised Person” was to be replaced by “Umntfwanenkhosi Lomkhulu.”
Quite apart from being a perfectly horrid place of legal drafting of which any competent self-respecting Parliamentary draftsman would, I think, be thoroughly ashamed this amendment would appear to effect no substantial change to the law. Indeed, even the amendment to section 28 seems to do no more than introduce a kind of vagueness into the concept of Monarchy in Swaziland. Whatever politicians may have made of the amendment I have no doubt that a properly directed Court, called upon to construe it, would have ruled that it did not impinge on the traditional functions of the King as Head of State simply because of that vagueness. It may be, of course, that those responsible for giving the instructions to the draftsmen had a different idea of the effect of the proposed amendments.
Prince Sozisa’s guidelines on Liqoqo referes to “the work of the King-in-Liqoqo” and the table referred to depicts the Monarchy as – INDLOVUKAZI UMNTFWANA (QUEEN) REGENT) (King – Elect) LIQOQO (Supreme Council of State) It may be that this the ultimate vision of Prince Sozisa and others but the draft Constitution would not, in my view, have achieved such a position and as such it is no real basis for finding that part of the conspiracy was to make any real or radical alteration to the structure of Kingship and functions or powers of the King. In my judgment, once Prince Sozisa and the Liqoqo were satisfied that their positions were secured following the removal of Queen Dzeliwe it was decided to leave matters as they were.
Having reviewed evidence led in respect of each of the alleged overt acts it now becomes necessary to pull the strands together and reach a conclusion as to whether it has been established that the accused or any of them are guilty of High Treason. An overt act is the manifestation of the hostile intent which is an essential element of the offence and the acts alleged by the prosecution, if proved, to have been committed by any one of the accused, must be capable of being construed as such either singly or jointly. I will take each accused in turn. The creation of a formalized Liqoqo as a statutory body appears to have been a fine idea in theory but, as often happens, proved to be not such a fine concept in practice. Its membership was put on a statutory pedestal and exposed to public gaze and it seems to me that the members soon became desperate to exercise the power normally to be associated with a body described as a Supreme Council of State.
It found itself unable to do so, however, and in consequence the draft decree was conceived. I have no doubt that it was the burning desire of each and every active member of Liqoqo that the draft should become law so that Liqoqo could assume what its members regarded as its proper position in the government of the country. 2nd August 1983, however, saw their dreams shattered with the announcement by the Queen Regent not only that she refused to sign the decree but that Liqoqo was disbanded. Six days later the Queen Regent was disposed. I find it an irresistible inference that certainly some members of Liqoqo were actively involved in that event. It may be that they did no more than rally support for their cause: it may be that they orchestrated all that happened. Either way they cannot escape responsibility.
I have deliberately chosen to refer to “members” of Liqoqo because there is no evidence that at that stage Liqoqo made any decision as a body and it would be wrong to impute responsibility simply on the basis of membership. However, inference may be drawn from conduct and looking at the conduct of accused 1 during the period under consideration it is clear to me that he was one of those who was not content to sit idly by and see his appointment as a Liqoqo member and as Chairman of the Civil Service Board disappear into thin air.
I am satisfied on the evidence placed before this Tribunal that accused 1 had no intention of accepting the fact of his dismissal as chairman of the Civil Service Board and that when he attended the Board’s meeting on 8th August 1983 it was secure in the knowledge that his appointment had been safeguarded. He had been at the meeting at which the removal of the Queen Regent had been discussed and decided upon and he was well aware that the effect of the decision to place LaThwala on the throne while she was still in mourning would effectively place the administration of the country in the hands of Prince Sozisa, the Authorised Person, and the Liqoqo of which, accused 1, still regarded himself as a member.
Later on 8th August he was at Endlunkhulu for the purpose of publicly demonstrating his support for the decision which had been taken and I have no doubt that he was an active member of the Embo faction. When the Queen Regent challenged the decision in the Courts, this accused played a prominent role in defending the case and he was present yet again at Embo State House when the Embo faction gathered there to oversee the physical removal of the Queen Regent from Lobamba. A month or so later he was to be seen and heard delivering an address at the Cattle Byre cautioning those present not to take a stand against what had been decided and threatening them of the consequences of doing so. In my judgment, accused 1 was undoubtedly part of the treasonous plot to depose the Head of State and must be found guilty on count 1.
As for count 2 the unlawful removal of Dzeliwe as Ndlovukazi can be regarded in no other way than as the greatest of all insults to her as Ndlovukazi and those responsible must at very least, be taken to have had the intention of exciting disaffection against her person. Accordingly, accused 1 must also be found guilty on that count. Accused 2 was Prime Minister at the time and as such in a position of unquestionable power and authority. If any person could have prevented what took place it was he. The police had strong misgivings as to what they saw happening and all they needed to put resistance was a political leader. Accused 2, however, was not the man.
He had shown his colours on 2nd August when he displayed open contempt for the Queen Regent. Thereafter it is clear to me that he firmly allied himself to the Embo faction and was only too willing to do their bidding. He was on the scene at all the important meetings, he instructed the Police, Army, Cabinet and Civil Service to do nothing, he prevented an appeal by the Queen Regent to the Nation and he was undoubtedly one of those who prevented her appeal to the Courts. He made his attitude abundantly clear when he addressed the Chiefs and Ndvunas at the Cattle Byre in October. This accused now lamely claims that he could not have questioned the elders but, in my view, the truth of the matter is that he had no wish to question them or anyone else.
He was happy to see the Queen Regent go. In any event I find this lament that instructions from the elders must unquestionably be followed wholly unappealing. This country has laws as does any other country and it is to my mind a nonsense to suggest that those laws can be disregarded with impunity simply because of a command from a small circle of people whose identity is not even disclosed. That is a sure recipe for anarchy. In my judgment accused 2 must be found guilty on both counts. Much of what has already been said applies with equal force to accused 3. He also was at the meeting at Embo State House on 8th August and later the same day was one of those who publicly demonstrated their support for the decision to remove the Queen Regent.
While I am not satisfied that he was among those present at Embo on 4th September we nonetheless find him in October bitterly criticizing those who assisted the Queen Regent in her application to the High Court. When it is considered that as a member of Liqoqo he was indirectly a respondent to that application it is clear what his attitude towards the Queen Regent’s last-ditch attempt was. I am satisfied of this accused’s guilt on both counts. Accused 4 falls into somewhat different category. The evidence is that he was not present at the meeting at Embo State House on 8th August but was merely waiting outside and I am not satisfied that he was one of those who subsequently marched to Endlunkhulu.
Nor is there any satisfactory evidence that he was present during the events of 4th September. There is, however, ample evidence to support allegations that he was one of those dismissed from office who not only did not accept dismissal but who disregarded it. There is also ample evidence that on 8th and 9th August he was the person arranging for the “legalising” of the removal of the Queen Regent by gazetting an appropriate legal notice. It is quite plain that his was not a neutral position, that he understood perfectly well what was happening and that he was perfectly willing to serve his masters in whatever they were engaged. Accused 4’s defence appears to be two-fold.
Firstly, he says that everything he did, whether it be found unlawful or not, was done on instructions. Accepting this to be so, it does not, in my judgment, constitute a defence in law. Although there are certain circumstances in which the law will excuse acts done under orders, in the case of civilians this can only apply where the crime is not a serious one. This certainly cannot be said of treason. Secondly, he contends that it has not been established that he was part of a conspiracy nor has it been established that what he did was done in furtherance of a common purpose. The answer to that is contained in the following passage taken from the instruction given to the jury in Hardy’s case, New State Trials, Vol. 1. p. 626: “It is now proper for me to add what, however, is probably known to you all, that in treason there are no accessories.
All who become partakers of a traitorous project, whether at an early stage or a late stage of it, whether as leaders or followers, whether they engage for the whole plot or only to execute a particular part of it, are guilty of treason, provided that the part which they do undertake relates strictly and properly to the forwarding and accomplishing of the grand object in view by the rest of the conspirators.” In my view this passage squarely covers the role played by accused 4 and, while his part may be described as a subordinate one, he is nonetheless guilty on both counts.
Accused 5 is plainly guilty on both counts. Her unsworn statement supports the prosecution case that she was one of the most active in the traitorous project. Accused six presents me with some difficulty however. She does not appear on the scene until 8th August when certain witnesses said that she was one of those at Embo State House but, as I have already said, I have come to the conclusion that it would be unsafe to accept such evidence. She admits that she was at Lobamba on 9th August but says that her presence there was wholly unconnected with the removal of the Queen Regent. She had come there, as was her custom, to report the successful completion of the burning of grass at the burial place of Kings which is her responsibility and while there she chanced upon accused 5. She accompanied accused 5 to Endlunkhulu where many of the sons of the late King were gathered and then returned towards Embo to find the Governor.
It was only when she spoke to the Governor that she began to get a glimmer of what was going on. I have no doubt that accused 6 was lying when she said that it was only at that stage that she became aware of events. If accused 5 did not inform her when they first met, and I can see no reason why she should not have done, she must have heard something of what was being discussed when accused 5 met the Princes at Endlunkhulu. However, it by no means follows from the fact that accused 6 lied on this matter that she also lied when she said that she arrived at Lobamba by chance on 9th August and was not there the previous day. Accused persons sometimes foolishly try to improve their defence when there is no need for them to do so.
There is, of course, also evidence that this accused was present at Embo on 4th September and the accused does not deny that. She said she only went there out of curiosity because she saw a number of vehicles parked there as she was driving on the main road. It was late in the afternoon and when the Libandla was called in she entered as well. She remained there throughout the evening but did not, she says, make any of the remarks attributed to her by Sotja Dlamini. If I were convinced that she did make derogatory remarks of the Queen Regent I would be satisfied that her presence at the meeting has only one explanation, namely that she was part of the treachery; but for reasons I have already given I am not convinced.
Accordingly, while I have a strong suspicion that this accused may have been more deeply involved than she now claims I am of the view that it would be proper to give her the benefit of the doubt and acquit her on both counts. Accused 7 also appears from the evidence to have been very much on the fringe of events. While he was undoubtedly at Embo State House on 8th August there is no acceptable evidence that he returned to Lobamba in the afternoon and it may be said that his activities on that day were no more culpable than those of Prince Gabheni.
The only difference is that accused 7 was not honest with the Tribunal as to what occurred at Embo State House in the morning but that could be put down to the influence of some of his co-accused. He does not appear to come into the picture on 9th August and one witness, Prince Sobandla, even went so far as to agree that accused 7 had nothing to do with the removal of the Queen Regent. There was, of course, some evidence that he was at Embo on 4th September but Titus Msibi accepted in cross-examination that he could not be sure of this and, as I have indicated earlier, I am not satisfied that he was there. He was not a member of Liqoqo nor did he play any role in opposing the Queen Regent’s application to the High Court.
The only other respect in which he figures in this case is as one of the speech-makers in October 1983 but his speech was positively mild in terms when compared with some of the others. His speech seems to convey an air of bemusement rather than hostility towards the deposed Queen. I am of the view that the right course would be to acquit accused 7 on both counts. Accused 8 was clearly in the thick of events actively lending his support to the removal of the Queen Regent. While he is now a sick man and strikes a sorry picture sitting in the dock I accept the evidence of Sotja Dlamini that that was not the case in 1983. He has chosen not to give evidence and repudiate the evidence of the prosecution witnesses and in view of his role he must be found guilty on both counts.
@Accused 9 was a member of the Liqoqo and on his own admission was at Embo State House on 8th August and was one of those who marched to Endlunkhulu later in the day. I have already expressed my view of those who participated in that display of support. While his speech in October was one of the more innocuous he asserts that the Queen Regent’s application to the High Court, in which, as a member of Liqoqo, he was indirectly a respondent, had to be defended. He clearly supported the removal. In all the circumstances, I am satisfied that in the case of accused 9 the proper verdict is one of guilty on both counts. I now come to accused 10. I have already said that I am not satisfied that he was at the meeting at Embo State House on 8th August and he does not appear to have been involved in events on 9th.
As for 4th September his role appears to have been that of arranging transport for the deposed Queen Regent at the behest of the Governor of Lobamba and of removing her guards on the order of a superior officer. The view expressed in Burchell and Hunt’s South Africa Criminal Law and Procedure Vol. 1 at page 300 is that when dealing with acts done by a soldier on the orders of a superior officer the determining factor when considering liability is – “…whether a reasonable man in the position of the accused would have regarded himself as being under a duty to obey the order and would, therefore have obeyed it.” Adopting this approach, I am of the opinion that a reasonable major in the Defence Force would have regarded himself as being under a duty to obey the order of his Commanding Officer to remove the guards from the Royal Kraal particularly if the order was accompanied by the explanation that the Defence Force had decided as a matter of policy to distance itself from what was happening to the Queen Regent.
The act which was ordered could not, in my view, be said to be so manifestly unlawful as to warrant disobedience by an officer. Accordingly, this accused is entitled to be acquitted on both counts. Accused 11 was one of those who spoke on 2nd August 1983 but there is no evidence to contradict his own that all he said was that the Queen Regent should let those dismissed know the wrongs they had committed and that only those who had committed wrong should be dismissed. I am not satisfied on the evidence that this accused was at Embo State House meeting on 8th August and there is no evidence that he was playing an active role in events on 9th. I am also not satisfied that he was present at Embo on 4th September.
This accused’s function seems to have been as a speech-maker and although he was responsible for uttering a diatribe of insults on 13th October that, in my opinion, is not sufficient to justify a finding that he participated in the traitorous project which is the subject of this case. I therefore conclude that he should be acquitted on count one. However, in speaking in the way he did he clearly intended to bring the deposed Queen Regent into contempt and intended to excite disaffection, ill-will and hostility against her person.
Her removal was unlawful and, although at the stage when the speech was delivered LaThwala may have been de facto Ndlovukazi. In my judgment accused 11 must be found guilty on count two. Accused 12 was one of those at the meeting at Embo State House on 8th August and was one of those who marched to Endlunkhulu later that day. He also played a prominent role in the physical removal of the deposed Queen Regent from Lobamba on 4th September. He contends that all he did was to act on instructions but I have no doubt he exercised his free will throughout. He was also a member of the Liqoqo but I do not consider it necessary to go any further than I have done.
The evidence clearly establishes his guilt on both counts. To summarise: 1) Accused 1, 2, 3, 4, 5, 8, 9, and 12 are found guilty on both counts of the indictment. 2) Accused 11 is acquitted on count one but convicted on count two of the indictment. 3) Accused 6, 7, and 10 are acquitted on both counts and discharged. Titus Msibi and Patrick Makhanza were presented to the Tribunal as accomplice witnesses and, without making any finding as to whether they were properly presented as such, the Tribunal expressed itself satisfied with the evidence of these two witnesses and they are therefore both absolutely freed and discharged from all liability to prosecution for either of the offences in the indictment. The clerk to the Tribunal is directed to inform them of this ruling.