Times Of Swaziland: SHONGWE’S EXTRADITION CASE JUDGMENT JUNE 20

SHONGWE’S EXTRADITION CASE JUDGMENT JUNE 20
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BY SIBUSISO ZWANE on 29/05/2020 13:15:00


MANZINI - Would Sipho Shongwe be a free man in as far as his extradition case is
concerned?
This is a question which Manzini Principal Magistrate David Khumalo will clarify
when issuing the final judgment regarding Shongwe’s extradition case on June
20, 2020. This is in light of what Shongwe submitted in his heads of argument.
Shongwe, who is fighting the extradition application by South Africa, is of the
view that even if he was erroneously released from Barberton Prison on March 28,
2008, he could be a free man now in terms of the Correctional Services Act 111
of 1998.
In his arguments, he said the Act was clear that an escaped inmate and a convict
who was released erroneously ought not to be treated equally.
Imprisonment
He said this was because Section 39 (3) of the Act says; “The date of expiry
of any sentence of imprisonment being served by a prisoner who escapes from
lawful custody extradited in terms of the Extradition Act of 67 of 1962 and
return to the Republic of South Africa or who is unlawfully discharged is
postponed by the period by which such sentence was interrupted.”
On the other hand, he said Section 39 (6) (a) as amended by Section 31(d) of the
Correctional Services Act 25 of 2008 makes provision that; “after the national
commissioner is satisfied that a sentenced offender has been released from a
Correctional centre erroneously, he/she may issue a warrant of arrest of such a
convict to be readmitted to a correctional services facility to serve the rest
of his/her sentence.”
Therefore, he said it made perfect sense for an escaped inmate to serve his/her
entire sentence upon capture because it was his fault that he could not finish
his/her jail time as he/she was on the run.
Again, he said it also made perfect sense that an inmate who was erroneously
released, through a fault which was not his/hers, ought to serve the remaining
part of his sentence and the time spent outside of jail be considered as time
served.
He said what was clear from the provisions of the Act was that an escaped inmate
and erroneously released convict, he/she should be re-arrested or readmitted to
a Correctional facility, with the exception that the computation of the
sentences would differ.
Thereafter, he argued that the applicant should elect between the two
provisions. He said this was because it was basic principle of the law that a
party could not plead to two inconsistent causes of action as that constitutes a
pleading which lacks a cause of action or one that was vague and embarrassing.
Shongwe said regarding escaping from lawful custody, the applicant said he
allegedly escaped because he was the sole beneficiary of the alleged forging and
uttering of the court order and liberation warrant which was allegedly used to
release him from prison.
“This is flawed and constitutes speculation and conjecture in that it loses
sight of the fact that incarceration of a person, not only affects him/her, but
his/her immediate family and friends as well,” Shongwe argued.
He said this meant that family members and friends had a vested interest in the
freedom of their loved one who was incarcerated and therefore, it was not
unreasonable to imagine a spouse going on a frolic of his/her own to procure the
release of an incarcerated partner, by forging and uttering documents.
Inferred
So, he said in this matter, it might also be reasonably inferred that a spouse,
a family member or a friend could have forged and uttered the court order and
liberation warrant, to procure the release of the respondent unbeknown to the
latter.
“In the premises, the submissions regarding an escape ought to be rejected
based on the reasons alluded to above and on the basis that are not suspended by
any evidence, but constitute submissions from the bar, conjecture and
speculation,” reads part of Shongwe’s heads of argument.
Once more regarding the alleged erroneous release, in his heads of argument,
Shongwe said the witnesses which were paraded by the applicant, testified that
the respondent was allegedly left with 12 years – 11 months and three days
before he could be placed on parole.
However, he said he disputed that evidence and submitted that the witness was
not entitled to testify on the computation of his sentence, but it was only the
case management committee (CMC) that was in a right position to do that.
Paroled
He said he also contended that his co-accused had already been paroled and
released. Therefore, he said there was material dispute of fact regarding the
computation of the sentence.
Again, he said from what had been alluded to above in terms of the computation
of a sentence of an inmate who had been released erroneously; it was incorrect
to suggest that he ought to serve 12 years – 11 months and three days.
He said this was because 12 years had already elapsed since he was erroneously
released.
According to court documents, Shongwe was erroneously released in March 28, 2008
and this means in March 28, 2020, he was completing 20 years since his alleged
questionable release from prison. In the extradition case, Shongwe is
represented by Lawyer Ben J Simelane.
In the country, Shongwe is facing a murder charge, whereby he is accused of
killing businessman and football administrator Victor Gamedze. The businessman
was shot dead on January 14, 2018 at Galp Filling Station in Ezulwini.
On the other hand, in South Africa, Shongwe is wanted for allegedly escaping
from Barberton Maximum Prison using forged documents. He is also facing charges
of forgery and uttering.