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‘SHONGWE SHOULD STOP CONTACTING STATE WITNESSES’

04/12/2019 01:29:00 BY KWANELE DLAMINI

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MBABANE - The State yesterday requested Judge Nkosinathi Maseko to direct Sipho Shongwe to stop contacting its witnesses.

Shongwe, who has been charged with the murder of businessman Victor Gamedze, was in court yesterday for the hearing of the application he has filed to stop Judge Maseko from delivering a judgment on the AVL matter.
This would have determined if State witnesses, Mbuso ‘Ncaza’ Nkosi and Siphiwe ‘Tata’ Ngubane would be allowed to give their evidence through the audio video link (AVL) mechanism.

The two are in custody in the Republic of South Africa. Judge Maseko did not deliver the judgment since Shongwe last Wednesday filed an urgent application to stop the court from issuing its ruling on the matter.
Advocate Michael Hellens, who has been instructed by the Crown, made the request to the court after the judge had stated that the matter would not proceed yesterday because of the pending application.

Remind

The advocate said: “My Lord, I have one request to make, that you remind Sipho Shongwe, the accused, of his duty not to interfere or to contact any Crown witnesses.”
Judge Maseko said if he did that, it would mean that the court had evidence in front of it indicating that Shongwe contacted the State witnesses.
“So I won’t burden him with any warnings when I don’t have any evidence. I can only do so when I have evidence,” said the judge.

At the start of the matter, Lucky Howe requested that the defence be given more time to file its replying affidavit. He said he would have to travel to Johannesburg to ascertain the material dispute that has arisen.

“A factual dispute has arisen, which is pertinent to us. It would be safe for the court to grant us an indulgence to allow us to go to South Africa next week to ascertain, get the material and file the replying affidavit. Our client is in custody and it is difficult for us,” said Howe.

In opposing the application for an extension of time to file the replying affidavit, Advocate Hellens told the court that it should analyse the founding affidavit filed by Shongwe to stop the court from issuing a judgment on the AVL matter.

The advocate submitted that even without an answering affidavit, Shongwe failed to make out a case on anything in his papers.
Advocate Hellens said Shongwe speculated that someone had allegedly advised Nkosi and Ngubane differently. He pointed out that Shongwe’s application was a ploy to delay the judge’s ruling and the possibility that the State may lead the evidence of Nkosi and Ngubane this week.

Judge Maseko told the advocate that the court would not deliver its ruling on the AVL matter because of Shongwe’s application, which he filed last Wednesday.
“It won’t be possible for me to deliver a judgment in the face of this application,” said the judge. Advocate Hellens said it was a poor excuse that the defence had not filed the replying papers because they intend to go to Johannesburg. “This is clearly a device for a delay. You can dismiss the application for failure to file.”

Denied

Howe denied that the defence was delaying the case. He undertook to file the necessary papers next week.“Why would we delay anything when somebody is in custody? We are doing everything to expedite the matter.”
Judge Maseko said the court would not deny a party to present their evidence.

The judge stated that since the case was a criminal matter, where there was a reasonable explanation for a delay, he would be bound to accept it so that when he delivered his judgment, he would do so with a clear conscience that none of the parties were short-changed.

“I am giving the defence the indulgence to file the reply. At the same time I do not want to upset the prosecution’s strategy. I was going to deliver the judgment but put everything on hold when I was served with this application.”

The murder trial will continue on January 30, 31 and February 3, 2020. Other dates are February 13, 14, 25, 26, and 27 in 2020. The ruling on the application by the Crown to recall Ricardo Mordaunt will be delivered on January 21, 2020 before the AVL matter on the same date.