IS APPLICATION TO STOP SIPHO’S BAIL HEARING STILL RELEVANT?

MBABANE – Was Judge Sipho Nkosi aware of the ruling made by Justice Mzwandile Fakudze when he declared that he would proceed to hear Sipho Shongwe’s bail application on July 9, 2018?

This question was asked by judges of the Supreme Court, who heard the application filed by the Crown for an order to stop Judge Nkosi from proceeding to hear the murder suspect’s bail hearing yesterday. 

The matter was heard yesterday by Judge Majahenkhaba Dlamini, sitting with Judge Stanley Maphalala and Judge Jacobus Annandale.
Judge Nkosi vowed to continue hearing Shongwe’s bail application on July 9, 2018, despite that there was also a directive from the chief justice to the effect that the matter should not proceed pending the appeal filed by the Crown.

Shongwe stands charged with the murder of astute businessman and football administrator Victor Gamedze.
When Judge Nkosi informed all and sundry that he would hear the murder suspect’s bail hearing come rain or shine, Judge Fakudze had ordered that the High Court should wait until the Supreme Court determined the appeal noted or filed by the Crown.

The order by Judge Fakudze, according to the Crown, has not been appealed or reviewed. The Supreme Court also directed that the bail hearing in the High Court should be held in abeyance.

Judge Dlamini noted that when Judge Fakudze issued his order, no one had indicated that they would continue with anything.
Principal Crown Counsel Absalom Makhanya, who appeared in the matter alongside Principal Crown Counsel Macebo Nxumalo, told the court that an  appeal of Judge Nkosi’s finding had been filed, which was why Judge Fakudze issued his order.

It was then that Judge Dlamini enquired if Judge Nkosi had been made aware about Judge Fakudze’s order stopping the bail hearing in the High Court pending determination of the appeal. Makhanya’s response was that Shongwe’s representatives were aware of the judgment. Shongwe’s attorneys are Sipho Mnisi, Lucky Howe and Ben J Simelane.

Makhanya stated that Judge Nkosi, in the transcript, indicated that he was aware of the purported appeal filed by the Crown but never mentioned Judge Fakudze’s ruling. Makhanya also said it was not stated anywhere that Judge Nkosi was not aware of Judge Fakudze’s ruling.

Judge Dlamini questioned if Judge Nkosi would not have changed his stance regarding proceeding with hearing the bail application if he had been made aware of Judge Fakudze’s ruling. Makhanya said he would not know if the judge would have changed his position.
Since Judge Nkosi ended up not presiding over the bail hearing on July 9, 2018, Judge Dlamini questioned if the application to stop the former from continuing to hear the matter was still relevant. The judge said the application before court was to prevent the bail application being heard on July 9, which never happened.

“The 9th has passed. Is this application still relevant?” asked Judge Dlamini.
Makhanya responded to the affirmative. The principal Crown counsel explained that in the High Court, there was Judge Fakudze’s judgment and Judge Nkosi’s order that he would continue to hear the matter.

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