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SA HIGH COURT DISMISSES SIPHO APPLICATION

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MBABANE - The going gets tougher for murder accused Sipho Shongwe. This, after the High Court of South Africa, Mpumalanga Division, in Middelburg, dismissed murder accused Sipho Shongwe’s application to set aside two warrants of arrest which were issued against him on October 18, 2017.


Alternatively, Shongwe wanted the court to stay the operation of the warrants pending determination of the validity of the court order and liberation warrant in terms of which he was released from Barberton Maximum Prison in March 2008.


The application was dismissed in June 2019 by acting Judges of the High Court HF Brauckmann and SS Mphahlele. Shongwe was represented by Advocate TS Ngwenya, who was instructed by JF Attorneys, while Advocate E Leonard appeared in the matter on the instruction of the State.


At the time of his ‘release’ from prison over a decade ago, Shongwe was serving two life sentences and other sentences  for two counts of murder, robbery with aggravating circumstances and various charges of attempted murder.


Judge Brauckmann, when dismissing the application, said Shongwe was not only serving a life sentence, but he escaped from serving the sentence by producing a fraudulent document as a court order. The judge also said from both warrants of arrest, it was clear that Shongwe was charged with serious crimes.


According to the warrants of arrest, which he wanted to be set aside, Shongwe is wanted in the neighbouring country to answer on the charges of escaping from lawful custody and absconding in terms of Section 117 of the Correctional Services Act 111 of 1998, forgery and uttering.


While incarcerated in Barberton, Shongwe filed an application for leave to appeal to the Supreme Court and Constitutional Court and both his applications were unsuccessful.

He wanted to have his conviction set aside and his application for direct access to the Constitutional Court was dismissed on May 30, 2003.
Judge Brauckmann said on March 25, 2008, Shongwe was suddenly released from prison. His release, according to the State, was in terms of a ‘court order’ and a ‘liberation warrant’ in terms of which they were an apparent forgery.


Mentioned


About the ‘court order’, the judge said the name of the applicant was not mentioned anywhere in the said ‘order’ and that there were various discrepancies in it which were duly pointed out by State in its opposing affidavit, “and it seems both the ‘court order’ and the ‘warrant of liberation’ were forged documents.”
Shongwe argued that he was not aware of the reasons for his release. He said he assumed that he had been released on parole.


The State denied this. The judge noted that after his release, Shongwe returned to his country of origin, Eswatini.
It was during his stay in the country where he established himself as a businessman that he was arrested for the murder of businessman and football administrator Victor Gamedze.


Shortly after his arrest in Eswatini, he was granted bail which was fixed at E500 000 by Judge Sipho Nkosi. However, he could not be released because South African authorities became aware that he was in custody and they applied for his extradition.


Shongwe filed an application for the review of the warrants of arrest in the neighbouring country. He argued that there was no offence which justified the issuance of a warrant of arrest and that the magistrate had no jurisdiction to issue it.


He also contended that the first warrant was issued erroneously since there was no offence and that it was not properly cancelled. He said it was cancelled by a prosecutor instead of a magistrate. He said he was, therefore, entitled to have the warrants set aside.


The first warrant reflected that Shongwe was wanted for allegedly escaping from lawful custody. It was then cancelled and another one was issued, which included the charges of forgery and uttering. The State stated that the initial warrant was cancelled by a prosecutor in the presence of a magistrate.


Shongwe, according to the court, did not contradict the evidence of the State on the issuance of the second warrant since he did not file a replying affidavit.
“From the first and second warrant, it is clear that the applicant was charged with serious crimes. Forgery and uttering are serious crimes, specifically the justice system is being prejudiced,” said Judge Brauckmann.


The judge said the court was satisfied that both warrants were issued after due compliance with the Criminal Procedure Act (CPA) of that country.
Judge Brauckmann stated that despite that it was clear that the first warrant was cancelled by the prosecutor and not the magistrate, the cancellation took place with the knowledge, consent and instructions of the magistrate as per the CPA.




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