MORE CONFUSION IN SIPHO’S MURDER TRIAL

MBABANE - It seems confusion always reigns supreme when an application touching on the Crown and Sipho Shongwe is supposed to be heard by the courts.

Yesterday was not an exception as the application for the admission of the prosecuting counsel, Advocate Michael Hellens, failed to kick off again.
All the lawyers representing the parties were present, but they ended up wandering within the court premises. It later transpired that the Chief Justice Bheki Maphalala, who was supposed to preside over the matter, would not come to open court as anticipated. The attorneys of the parties remained within the court premises with the hope that they would be called to court for the argument of the matter.

Debating

This was, however, not to be as the attorneys were overheard debating among themselves whether they should wait for word from the chief justice or leave and come back today.
They were later to be informed that the matter would not proceed yesterday and that the chief justice would hear the application today.
The reasons for the postponement were not readily availed at the time but it was later gathered that Shongwe’s legal team would be filing comprehensive papers outlining why they are opposing the application for the admission of Advocate Hellens.

Advocate Hellens was instructed by the Crown to appear on its behalf in the murder trial of Shongwe, who is accused of killing Victor Gamedze on January 14, 2018.
Judge Nkosinathi Maseko issued an order on Tuesday that the advocate should file an application for his admission and that the matter would be heard yesterday at 2:30pm.

Shongwe’s representative, Advocate Laurence Hodes and his instructing attorney, Lucky Howe were the first to arrive at the High Court in the afternoon.
They waited for the arrival of the Crown’s representatives, Principal Crown Counsels Macebo Nxumalo, Absalom Makhanya and Advocate Hellens, who arrived shortly afterwards.

Last to arrive were representatives of the attorney general and senior lawyer Zweli Jele of Robinson Bertram. Advocate Hellens has instructed Jele to represent him in his application for admission.

There was confusion on whether the application would be heard. The attorneys were seen making phone calls and making frantic efforts to get word from the chief justice on how the matter would be proceeded with.

They waited for sometime hoping to be informed what the chief justice would direct as far as the matter was to be dealt with. After about an hour of waiting to be informed what to do, the lawyers finally dispersed. This was after Shongwe’s representatives requested that the matter be postponed so that they file an answering affidavit. The matter will now be heard today at 9am.

This means that Shongwe’s objection to having State witnesses, Mbusi ‘Ncaza’ Nkosi and Simphiwe Tata Ngubane to physically present themselves before court to give evidence as opposed to doing so by audio visual link (AVL) will no longer be heard today.
The AVL matter was to be heard on Tuesday. However, Shongwe’s legal team challenged the legality of the appearance of Advocate Hellens on behalf of the Crown.

Judge Nkosinathi Maseko was supposed to hear the AVL application on Tuesday and proceed with the murder trial yesterday and today. This will no longer be the case as the court now has to deal with Advocate Hellens’s application to be admitted in the country.

Opposed

The argument advanced by Shongwe, who is opposed to the application for admission, is that Advocate Hellens cannot appear before court as his appearance had been challenged, until such time that the challenge had been disposed and determined.

When the parties approached Judge Maseko in his chambers on Tuesday when he was supposed to hear the AVL matter, Howe raised the point that the AVL case should not be argued without the issue of the right of appearance in terms of Section 5 (2) of the Legal Practitioners Act (LPA).
The Crown, on the other hand, said that section of the Act did not apply to any person delegated by the director of public prosecutions (DPP) in term of Section 4 (2) of the same Act.

The judge ordered Advocate Hellens to file an application for admission.
In his supplementary heads of argument on the advocate’s right of admission, Shongwe said he objected to the appearance of Advocate Hellens to prosecute in his matter because he allegedly did not have a right of audience and therefore should not appear in the Kingdom of Eswatini.

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