SIPHO SHONGWE CHALLENGES CJ’S ORDER

MBABANE – “The order issued by Chief Justice Bheki Maphalala is inappropriate and incompetent.”

This was one of the points of law raised by Sipho Shongwe, who is now challenging the CJ’s decision of staying the order for his release from custody.
The order, which was later stayed by the head of Judiciary, had been issued by Judge Sipho Nkosi.

Shongwe now wants the Supreme Court to dismiss and render the CJ’s order incompetent, unlawful and of no force and effect.
In his notice to raise points of law, Shongwe averred that when hearing the application by the Crown to stay Judge Nkosi order, the CJ sat unconstitutionally by issuing a substantive order staying that of Judge Nkosi.

“The order issued by Justice Maphalala CJ is of no force and effect in that the Supreme Court is not a court of first instance and as provided for in terms of the Constitution, it only has appellant jurisdiction and as such, the matter was not before court in terms of the law as no notice of appeal has been served granting the court jurisdiction,” submitted Shongwe.

It was also his submission that, the order by the chief justice was of no force and effect as it was incompetent and could not be issued by the said court.  Shongwe averred that the order that was issued by the CJ could only be issued by the court that granted the initial order.
“No application for a stay of the proceedings is pending in the High Court before the Honourable Justice Nkosi who is the only competent Justice to issue a stay as sought,” added Shongwe.

He contended that the Crown proceeded to obtain the order without notice to him and in his absence at hearing. Shongwe argued that there was no prayer for the matter to be heard ex parte (without the knowledge of the other party).

Last Friday, Shongwe’s joy was cut short after the CJ issued an order for the stay of Judge Nkosi’s order to release him.  Judge Nkosi granted Shongwe E500 000. However, it seems the Crown had anticipated that the judge would order Shongwe’s release as it filed an application for a stay even before the ink on the order could dry up.

The order stopping Shongwe’s release from custody was subsequently issued by Chief Justice (CJ) Bheki Maphalala in his chambers.
No amount of strong words employed by Judge Nkosi could deter the Crown from pulling all strings to ensure that Shongwe remained in custody.

Deviate

After having granted Shongwe bail, Judge Nkosi stated in no uncertain terms that he would deal with anyone who would deviate from the order he had issued.
He also said; “This order must be carried out without any deviation. An order issued by this court cannot be deviated from by filing of a notice of appeal.”
The CJ issued the order for the stay approximately five minutes after Judge Nkosi and those who came to give the accused moral support had left the court premises.

The CJ’s order reads: ‘Having heard the counsel for the applicant (Crown), it is hereby ordered that; the order granted by the High Court on September 28, 2018 in respect of bail is hereby stayed pending finalisation of the application filed by the Crown’. The head of the Judiciary further directed Shongwe to file an opposing affidavit, if any, within three days hereof.  He also directed that the application in respect of the petition for leave to appeal filed by the Crown was postponed to a date to be arranged with the registrar. 

The order by the CJ came after the Crown filed an urgent application in the Supreme Court where it was, among other prayers, seeking an order staying the execution of the order issued by Judge Nkosi.

The Crown was also praying for an order, for leave to appeal against the order issued by Judge Nkosi.
In his application, Principal Crown Counsel Absalom Makhanya stated that the matter was urgent due to the fact that; the Crown could not be afforded substantial redress at a hearing in due course because if the ordinary time limits were followed, Shongwe would have been released and interest of justice would have been defeated.

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