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MBABANE – Murder accused Sipho Shongwe will remain behind bars until the completion of his trial. Shongwe has been languishing in custody since his arrest in February 2018 for the alleged murder of astute businessman and football administrator Victor Gamedze.

Judge Nkosinathi Maseko yesterday dismissed Shongwe’s application to have his bail reinstated.
Shongwe was granted bail fixed at E500 000 by Judge Sipho Nkosi after a year since his arrest for the alleged murder of Gamedze on January 14, 2018.
He paid E100 000 in cash and the balance was in the form of sureties. The bail was terminated in May 2019. 

In dismissing the application, Judge Maseko said the order that he made in terms of Section 145 on June 6, 2019 was not varied. 
According to Section 145 of the Criminal Procedure and Evidence Act, an accused, if indicted in the High Court after having been admitted to bail, if his plea to the indictment, unless the court otherwise directs, has the effect of terminating his bail thereupon be detained to custody until the conclusion of the trial in the same manner in every respect as if he had not been admitted to bail.


“The accused is to remain in custody pending completion of his trial,” ordered the judge.
On December 3, 2019, Judge Maseko was requested by the defence team to reconsider the decision to invoke Section 145 of the Criminal Procedure and Evidence Act No.67/1938, which he issued on June 6, 2019 when he assumed presiding over the matter

On that day, June 6, 2019 when the court adjourned for the day, Advocate Michael Hellens representing the Crown, raised the issue with the court and at that state Judge Maseko invited the defence to respond to  the advocate’s application. Advocate Laurence Hodes for the defence responded that they wished to have Shongwe’s bail extended although he was in custody despite having paid bail.  Owing to the brief response by the defence to Section 145 raised by Advocate Hellens, the defence did not apply to make full submissions.

In his judgment, Judge Maseko said it must be borne in mind that he invited the defence counsels to present their view and they chose not to address him fully on the issue. The court then issued the order that Section 145 should be invoked.


“During the arguments, Mr Simelane (for the defence) on December 3, 2019, I asked him as to why he did not respond to the issue that Mr Hellens raised, and why the issue for the extension of bail was never raised with Judge Mamba before whom the plea was taken by the accused. Mr Simelane was honest to state that it was an error on the part of the defence team,” said Judge Maseko.

Lawyer Simelane submitted that the court invoked Section 145 and revoked Shongwe’s bail without having heard his side.
Judge Maseko pointed out that when Advocate Hellens moved the application, the defence counsel simply did not address the issue hence he invoked Section 145.
“It must be borne in mind that when I assumed presiding over this case on June 5, 2019, I found the accused in custody and when Advocate Hellens moved the application in terms of Section 145 on June 6, 2019, the defence did not address the court on the merits of their case but simply applied for an extension of the bail even though the accused person was already in custody,” said Judge Maseko.
He also highlighted that there was no evidence presented before him on June 6, 2019 that Shongwe was out on bail in this matter.
Judge Maseko said: “ The assumption on the part of the court was that he was in custody because of  the provisions of Section 145 as it is common cause that when I inherited this matter he was in custody and had already pleaded.
The judge said he was wondering why the defence did not address him on this issue on June 5, 2019 when he remanded Shongwe in custody pending continuation when Advocate Hellens then moved the application and at that stage, the defence hesitatingly applied for an extension of the bail for the accused whom he found in custody and with 11 Crown witnesses already having been led.
“It is for that reason that on June 6, 2019 and in exercise of my discretion and obviously there being no opposition from the defence and owing to the nature, and seriousness of the charges being faced by the accused and importantly that further I found the accused already in custody, I then invoked Section 145,” said  the judge.
He said it was therefore unprocedural at this stage to revisit the issue of Section 145 owing to the order he issued on June 6, 2019 wherein he invoked Section 145.

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