Times Of Swaziland: SA HIGH COURT DISMISSES SIPHO APPLICATION

SA HIGH COURT DISMISSES SIPHO APPLICATION
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 BY KWANELE DLAMINI AND MBONGISENI NDZIMANDZE on 19/07/2019 01:11:00


MBABANE - The going gets tougher for murder accused Sipho Shongwe. This, after
the High Court of South Africa, Mpumalanga Division, in Middelburg, dismissed
murder accused Sipho Shongwe’s application to set aside two warrants of arrest
which were issued against him on October 18, 2017.
Alternatively, Shongwe wanted the court to stay the operation of the warrants
pending determination of the validity of the court order and liberation warrant
in terms of which he was released from Barberton Maximum Prison in March 2008.
The application was dismissed in June 2019 by acting Judges of the High Court HF
Brauckmann and SS Mphahlele. Shongwe was represented by Advocate TS Ngwenya, who
was instructed by JF Attorneys, while Advocate E Leonard appeared in the matter
on the instruction of the State.
At the time of his ‘release’ from prison over a decade ago, Shongwe was
serving two life sentences and other sentences  for two counts of murder,
robbery with aggravating circumstances and various charges of attempted murder.
Judge Brauckmann, when dismissing the application, said Shongwe was not only
serving a life sentence, but he escaped from serving the sentence by producing a
fraudulent document as a court order. The judge also said from both warrants of
arrest, it was clear that Shongwe was charged with serious crimes.
According to the warrants of arrest, which he wanted to be set aside, Shongwe is
wanted in the neighbouring country to answer on the charges of escaping from
lawful custody and absconding in terms of Section 117 of the Correctional
Services Act 111 of 1998, forgery and uttering.
While incarcerated in Barberton, Shongwe filed an application for leave to
appeal to the Supreme Court and Constitutional Court and both his applications
were unsuccessful.
He wanted to have his conviction set aside and his application for direct access
to the Constitutional Court was dismissed on May 30, 2003.
Judge Brauckmann said on March 25, 2008, Shongwe was suddenly released from
prison. His release, according to the State, was in terms of a ‘court order’
and a ‘liberation warrant’ in terms of which they were an apparent forgery.
Mentioned
About the ‘court order’, the judge said the name of the applicant was not
mentioned anywhere in the said ‘order’ and that there were various
discrepancies in it which were duly pointed out by State in its opposing
affidavit, “and it seems both the ‘court order’ and the ‘warrant of
liberation’ were forged documents.”
Shongwe argued that he was not aware of the reasons for his release. He said he
assumed that he had been released on parole.
The State denied this. The judge noted that after his release, Shongwe returned
to his country of origin, Eswatini.
It was during his stay in the country where he established himself as a
businessman that he was arrested for the murder of businessman and football
administrator Victor Gamedze.
Shortly after his arrest in Eswatini, he was granted bail which was fixed at
E500 000 by Judge Sipho Nkosi. However, he could not be released because South
African authorities became aware that he was in custody and they applied for his
extradition.
Shongwe filed an application for the review of the warrants of arrest in the
neighbouring country. He argued that there was no offence which justified the
issuance of a warrant of arrest and that the magistrate had no jurisdiction to
issue it.
He also contended that the first warrant was issued erroneously since there was
no offence and that it was not properly cancelled. He said it was cancelled by a
prosecutor instead of a magistrate. He said he was, therefore, entitled to have
the warrants set aside.
The first warrant reflected that Shongwe was wanted for allegedly escaping from
lawful custody. It was then cancelled and another one was issued, which included
the charges of forgery and uttering. The State stated that the initial warrant
was cancelled by a prosecutor in the presence of a magistrate.
Shongwe, according to the court, did not contradict the evidence of the State on
the issuance of the second warrant since he did not file a replying affidavit.
“From the first and second warrant, it is clear that the applicant was charged
with serious crimes. Forgery and uttering are serious crimes, specifically the
justice system is being prejudiced,” said Judge Brauckmann.
The judge said the court was satisfied that both warrants were issued after due
compliance with the Criminal Procedure Act (CPA) of that country.
Judge Brauckmann stated that despite that it was clear that the first warrant
was cancelled by the prosecutor and not the magistrate, the cancellation took
place with the knowledge, consent and instructions of the magistrate as per the
CPA.