NCAZA, NGUBANE SHOULD TESTIFY IN PERSON - SIPHO

MBABANE – Murder accused Sipho Shongwe argues that the truthfulness of evidence is better tested when the person giving evidence is personally questioned about it.

He further contended that human experience showed that it was easier to lie about someone behind his back than to do so to his face. Shongwe made these submissions in the matter where he is opposing the application by the Crown to allow Mbusi Ncaza Nkosi and Simphiwe Tata Ngubane to testify in terms the Remote Participation Act of 2018.

The Act allows for participation in proceedings by Audio Visual Links (AVL). It may be used to link any participant in the proceedings, meaning a person who is party, a witness, counsel or any other person involved who is allowed to appear in this way. Nkosi and Ngubane, who are currently incarcerated in the Republic of South Africa, are also implicated in the murder of astute businessman Victor Gamedze.

The State has, however, turned them into accomplice witnesses, which means they will now testify against Shongwe.
In his opposing papers, Shongwe averred that the constitutional right of an accused to personally examine evidence adverse against him or her remained intact
He submitted that a court faced with such an application (for use of AVL) should be mindful of the dangers inherent in the use of an intermediary, which might prejudice the right of an accused to a fair trial.

According to the accused (Shongwe) the danger includes; cross – examination through an intermediary might be less effective than direct cross- examination of a witness.

Confront

He told the court that an accused prima facie had a right to confront accusers.
Shongwe said his refusal to give consent to the use of AVL as envisaged in Section 8(3) was not irresponsible or meant to frustrate and/or delay the trial.
He said he would like to have his trial commence and proceed as soon as possible.

“It is submitted that there is no case either in our jurisdiction or neighbouring South Africa where video evidence has been allowed by accomplice witnesses to testify by means of video and audio link in another country to convict an accused person of a serious offence,” he argued.

Shongwe submitted that the two witnesses, being considered that they were in custody for having committed offences in the Republic of South Africa, could, if they consented to do so, be brought to Eswatini in the same manner as any person who had been extradited to give evidence with the appropriate security and subsequently be returned to South Africa. He told the court that the balance of convenience favoured him and the application by the Crown ought to be refused with costs.

In his replying affidavit, Principal Crown Counsel Brian Magagula submitted that: “Quite patently, Shongwe is attempting to delay or avoid the evidence being given by audio visual link in an attempt to avoid the evidence ever being given.”

Post your comment

Your name:

Your e-mail address:

Add your comments:

Please enter the code you see in the image:

Image:

Code: