SIPHO TRIAL: SA WITNESSES AFRAID

MBABANE – With only nine days left for the most awaited murder trial of Sipho Shongwe to resume, two of the five surprise witnesses who are South African nationals have reportedly expressed their fear to physically come and testify in the case.

The duo is said to fear for their lives in coming to the kingdom. Shongwe stands accused of having a hand in the death of shrewd businessman and football administrator Victor Gamedze. The names of the duo and the other three witnesses cannot be revealed as there is a court order barring the media from doing so. So serious is the situation, that the director of public prosecutions (DPP) has filed a request with the registrar of the High Court, asking to allow the two witnesses to testify through remote participation.  Remote participation is when a witness in another member State gives or presents his evidence through utilisation of Audio Visual Links (AVL). The trial is slated for May 28 to June 6, 2019 before Judge Mbutfo Mamba. The Crown filed the request to allow the duo to testify through the AVL in terms of the Remote Participation Act of 2018.

Participation

The Act allows for participation in proceedings by AVL. It may be used to link any participant in the proceedings, meaning a person who is a party, a witness, counsel or any other person involved who is allowed to appear in this way. In the request forwarded to the court, the office of the DPP stated that: “The two witnesses are citizens of the Republic of South Africa and due to the circumstances beyond our control, for security reasons, they cannot come to Eswatini.” The DPP pointed out that the only way the (two witnesses) could give evidence was through the remote participation as provided for by the Act. To motivate the request, the DPP annexed a copy of the Act. Section 11(1) of the Act stipulates that a participant who appears at the proceedings, or part of a proceeding by the use of the AVL is regarded as being present in the place of hearing at the proceeding for the duration of that use.

Section 13 (1) provides that: “The appearance by a participant in proceeding by the use of AVL to the extent that it is authorised by this Act, fulfils the corresponding legal requirement in relation to appearance in person at the proceedings under every enactment  and rule of court, unless that other enactment of rule of court expressly provide otherwise.” According to the Act, a judicial officer shall consider, in making a determination under this Act, whether or not to allow the AVL for the appearance of any participant in a criminal proceeding, the potential impact of the use of the technology on the effective maintenance of the right of the accused person to a fair trial and on accused person’s right associated with the hearing in particular: the ability of the accused to comprehend the proceedings, to participate effectively in the conduct of their defence, to consult and instruct counsel privately, to access relevant evidence and to examine the  witnesses for the prosecution.

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