SIPHO SHONGWE TRIAL: HIGH COURT DISMISSES ANOTHER APPEAL

MANZINI - The High Court of South Africa has dismissed yet another appeal by murder suspect Sipho Shongwe.

Initially, Shongwe had applied to the High Court of South Africa Mpumalanga Division, Middelburg that it sets aside two warrants of arrest which were issued against him on December 18, 2017. However, the court dismissed the application on June 14, 2019.

Later on, Shongwe appealed the whole judgment and order, as well as the reasons thereof.
According to the Middelburg High Court, the Mpumalanga judgment was dated September 16, 2019 but was received at the Manzini Magistrate Court on October 17, 2019, in his appeal, Shongwe alleged that the magistrates court which issued the warrants of arrest erred in finding that he was a fugitive from justice.

The judgment also says Shongwe alleged that the court erred in finding that it was common cause that he fled South Africa. It also says he also submitted that the court allegedly erred in making decision on merits of the matter and in ruling that the first warrant of arrest was properly cancelled.

Again, it said Shongwe submitted that the court found that civil case law was not applicable regarding the question of a fugitive from justice in criminal proceedings, yet admitting a civil case law submitted by the South African State was unduly favourable to the latter.

Moreover, the court said Shongwe also submitted that it erred in finding that there was no requirement for an affidavit when applying for a warrant of arrest in terms of Section 43 of the Criminal Procedure Act 51 of 1977.

However, in the judgment, the court argued that the appellant raised no new issues in his application for leave of appeal. It said it dealt with all the issues in his application in the original judgment and therefore, it does not deem it necessary to repeat those in full.
It further said counsel for the appellant, Advocate TS Ngwenya, submitted that the court erred in finding that the applicant was a fugitive from justice as he was in custody in the Kingdom of Eswatini. It said he argued that at the behest of the South African Government any order made by the South African court, could effectively be executed in Eswatini.

The judgment also mentioned that Ngwenya also argued that only where the individual’s whereabouts were unknown to the court or his legal representative, could somebody be regarded as a fugitive from justice.

In response, the court said what the applicant’s representative lost sight of was the fact that his client left South Africa immediately after he was ‘erroneously’ released from prison using an allegedly forged court order ad liberation warrant.

“The South African authorities became aware of Shongwe’s whereabouts due to his arrest on an unrelated charge of murder in Eswatini,” the court said.
Furthermore, it said even if it could be found that Shongwe was not a fugitive from justice, the review application would still fail as the warrant of his arrest was legally and properly issued by the magistrate.

Cancellation

Once more, the court said Ngwenya further submitted that due process was not followed in the cancellation of the first warrant or arrest, therefore leaving it un-cancelled. In that regard, it said if this contention by the applicant could be found to be correct, then the first warrant of arrest would for all intents and purposes, remain valid. It said the first warrant was authorised and correctly issued by the magistrate after a written application by the investigating officer based on information obtained under oath that a reasonable suspicion existed that the applicant had allegedly committed a crime in the of jurisdiction of the magistrate (Barberton).

Again, the court said any of the warrants duly issued in terms of the Criminal Procedure Act were not in any way affected by a warrant in existence or already issued in terms of Section 39 (3) of the Correctional Services Act.

It added that the purpose of a warrant of arrest in terms of Section 43 of the Criminal Procedure Act was to arrest an individual where it was suspected that he/she was guilty of having committed an offence. It added that after the arrest was effected, a criminal court would establish whether or not that person had committed the alleged offence.

“Only if found guilty will the court sentence that person appropriately, reads part of the judgment. Furthermore, the court said the warrant of arrest in terms of the Correctional Services Act, was issued under circumstances where the person was unlawfully discharged or had escaped from lawful custody. It said its purpose would be the re-arrest of the prisoner to serve the balance of his/her sentence.

“The warrants of arrest issued in terms of the Criminal Procedure Act and Correctional Services Act are not mutually destructive and the issuing of the first or second warrant in casu, by the magistrate, is not unlawful,” reads part of the judgement.
On top of that, the court said the cancellation of the first warrant of arrest had little, if any, effect on any of the applicant’s right. It said the issuing of the warrant was what was contemplated in the said section.

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