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SHONGWE HAS CASE TO ANSWER ON ESCAPE CHARGES

11/12/2019 00:13:00 BY SIBUSISO ZWANE

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MANZINI - Murder accused Sipho Shongwe’s bid to have his name cleared regarding the alleged charges he is wanted for in South Africa has hit a snag.

This is because the court has found that Shongwe has a case to answer regarding his extradition matter. In this matter, the South African Government wants him to be extradited to the neighbouring country to face charges of allegedly escaping from prison, forgery and uttering. He is also wanted to complete his alleged outstanding sentence, which according to the court is in excess of 12 years.

Shongwe appeared before Manzini Principal Magistrate David Khumalo, who is presiding over the matter, yesterday.
The principal magistrate highlighted that after the Crown paraded 12 witnesses to deliver evidence, Shongwe’s legal representative, Ben J Simelane, filed an application for absolution.

Absolution may be granted at the end of the plaintiff’s case if the plaintiff has failed to adduce sufficient evidence upon which a reasonable court might grant judgment in favour of such plaintiff, or the plaintiff has not produced sufficient evidence to establish a prima facie case, in other words a case of which all the elements of the claim has been proven.

Discharged

The principal magistrate said in the absolution application, Simelane argued that his client should be discharged because the Crown allegedly failed to produce sufficient evidence that could make Shongwe to also deliver his side of the story.

The court said it noted that in his arguments, Shongwe’s legal representative argued that while he was incarcerated at Barberton Prison, South Africa, his client was closely watched 24 hours per day. He said the court also took into account that Simelane submitted that even people who visited Shongwe in the prison were monitored in terms of what they were talking about and doing with him.

Furthermore, the court also noted that Shongwe’s legal representative told the court that his release papers were sent to the prison via a fax, which meant that it was coming from outside.
“On that regard, Shongwe’s lawyer told the court that there was no way his client could forge and fax the release papers because he was inside the prison, which meant that he never committed forgery and uttering,” the court said.

Once more, the court said Shongwe’s lawyer also argued that he never escaped from Barberton Prison as he was escorted out of the Correctional facility by prison warders, who also did all the paperwork as per the law. He said it was also brought to the court’s attention that in accordance with the law, before he was released, Shongwe was taken by prison warders to a doctor for medical examination, given all his belongings and escorted to the bus rank.

Escaping

“The lawyer’s submission on that regard was that what happened when his client was released from prison, does not equate to escaping,” the court said.
In fact, the principal magistrate said the argument of Shongwe’s legal representative was that the prosecution allegedly failed dismally to produce evidence linking his client to the three charges; escaping from prison, forgery and uttering.

Regarding the matter of completing his alleged outstanding sentence in the South African prison, the court said it noted the Shongwe’s representative submitted that the Crown allegedly failed to prove that there was a remaining sentence that his client needed to serve in the neighbouring country.
The court said according to Shongwe’s lawyer, the Crown relied on hearsay yet in South Africa there was a Case Management Committee (CMC), which was responsible for counting convicts’ sentence duration and no member from the committee was called to testify.

It said Shongwe’s lawyer emphasised that witnesses who were brought to court only delivered hearsay.
However, the court narrated the Crown’s arguments that convinced it that indeed murder accused Sipho Shongwe has a case to answer.
Following Shongwe’s absolution application, the court said the prosecution countered it and this was in regard of the three charges he is wanted for in South Africa and completing his alleged outstanding sentence in the neighbouring country.

The court said the Crown argued that whosoever forged and uttered the warrant of liberation and court order, which was used to release Shongwe from Barberton Prison, did it on his (Shongwe’s) behalf as he was a sole beneficiary.

In fact, the court said the Crown submitted that its argument was based on the doctrine of common purpose. However, the court said it also took into consideration that Shongwe’s representative also argued that the Crown had misplaced the common purpose doctrine as it says the act of conspiracy should be proven and the role of each of the people involved to be demonstrated.

Conspired

The court said in this case, Shongwe’s lawyer submitted that based on the fact that his client was closely monitored while serving his sentence in Barberton Prison, there was no way he could have conspired with anyone from outside.
“He argued that Shongwe had no role at all in the forging and presenting of the release documents,” the court said.

On that note, the court further noted that Shongwe’s attorney also argued that the Crown also failed to prove that Shongwe played a role in the forging and presenting of the warrant of liberation and court order, which was used to release him from prison.

However, when coming to its findings, the court said the doctrine of common purpose was not limited to what the counsels presented before it.
It said at times, common purpose occurs without participation of one of the offenders. For instance, the court said one of the offenders could mandate certain people to commit the offence.

For example, he said one could send people to murder another person and they would kill him without active participation of the individual who sent them.
“However, that individual will be as guilty as those who participated in the murder,” the court said.

Forgery

Therefore, it said since in this case, the release documents came to the prison through fax, it meant that forgery and uttering took place outside the Correctional facility. However, it said the Crown submitted that those who committed the aforesaid offences might have been mandated by Shongwe.
Again, it said since the forging and uttering of these documents was meant to procure Shongwe’s release from prison, common sense and logic should be brought to the fore.

In that regard, the court said one should wonder why an individual could, from out of the blue, embark on the exercise of forgery and uttering, knowing that it was a criminal act.
Again, it said one should also wonder if a reasonable person could take it that someone could commit these offences without a mandate from someone else and to benefit what.

Thereafter, the court said when the question as to who could have issued the mandate arose, the Crown argued that there was only one beneficiary of the forging and uttering of the documents, Shongwe, and he might have given the order.

On that note, the court said Shongwe has to answer to these claims since they were serious and it pointed fingers at him.
It said it was not over yet as he could still deliver evidence to rebut the Crown’s submissions.
It said failure to do so might make the court reach a conclusion that what the Crown submitted was true.