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SIPHO SHONGWE CASE: NO REGULATIONS TO USE AVL

06/02/2020 02:35:00 BY MBONGISENI NDZIMANDZE AND KWANELE DLAMINI

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MBABANE – The lack of regulations governing the usage of the AVL or Remote Participation Act of 2018 might work against the Crown in the Sipho Shongwe murder trial.

AVL is an acronym for audio visual link.Shongwe’s lawyer Lucky Howe yesterday argued that even if the court could allow the usage of the AVL, it would not be useful without the regulations.

“The AVL has a hurdle. It cannot even be used in the first place even if the court allows the Crown to proceed leading its two witnesses. Without the regulations, you cannot proceed on the AVL,” contended Howe.

He cited Section 15 of the Remote Participation Act of 2018 which stipulates that: ‘The chief justice may make regulations, prescribing the procedure to be followed, type of equipment to be used and the arrangement to be made where a person is to appear by the use of AVL’.

Howe argued that the chief justice had to make the regulations, which would be tabled in Parliament, in consultation with the relevant stakeholders.
He went on to cite Section 253 of the Constitution which provides that; ‘‘Every subordinate legislation shall, before commencement, be laid before each chamber of Parliament for a period of at least 14 days.’’

Howe argued that even if the usage of AVL was allowed, the Crown would have to wait for the 14 days while Parliament dealt with the regulations.
“The order they are seeking cannot be given without the regulations that make it work.”

According to Howe, the Crown did not understand the legislation for the order they want the court to grant them.
The DPP has, on many occasions, told the court that the two accomplice witnesses, Siphiwe ‘Tata’ Ngubane and Mbuso ‘Ncaza’ Nkosi, were ready to give their much-awaited evidence.

Evidence

Advocate Michael Hellens, who appears for the Crown, informed the court that the State was ready to present the evidence of the duo by AVL. Nkosi and Ngubane are currently incarcerated in Johannesburg and they are accomplice witnesses in the Gamedze’s murder case.

The Crown applied that the two, who are facing criminal charges in South Africa as well, should give their evidence through AVL.
Advocate Hellens submitted that the video link equipment was ready for testing.

However, the pair will have to wait a bit longer to testify because Judge Nkosinathi Maseko is still to issue a judgment on the AVL matter.
This means that despite the Crown’s readiness to parade them, they cannot do so until the court has ruled whether to allow them to give their evidence through AVL.

“The video link arrangements have been made and they are in place. The equipment has been tested and if the court does not grant the application, we will pack the equipment and take it back,” said the advocate.

According to Advocate Hellens, Nkosi and Ngubeni would testify from the NPA’s offices in Gauteng. He said giving their evidence from the neighbouring country would not be different to when they testified at the High Court.

The advocate submitted that the court would be able to see and hear the witnesses and the room they would be in, assess their credibility, observe their hesitations and changes on their facial expressions.
He said it was up to the court to grant the application for AVL. He further submitted that the witnesses would be cross-examined as well.

Unsatisfactory

Advocate Hellens informed the court that the witnesses would be guided by officers during the process.The advocate told the court that if Nkosi and Ngubane gave unsatisfactory evidence, they would be prosecuted, but if the court was satisfied with their testimony, they would be indemnified.

Shongwe argued that the Crown ought to have approached him to seek his consent to parade Nkosi and Ngubane’s evidence through AVL. His representative, Advocate Laurence Hodes, said the Remote Participation Act of 2018 was clear on that. He stated that Shongwe ought to have consented to the remote participation of the duo. Advocate Hodes said Shongwe was never approached for his consent in the matter.

He argued that the Crown made a request to the registrar of the High Court to give approval for the use of audio/visual facilities available in the court for the purpose of the request for AVL in respect of Nkosi and Ngubane. He said that request was granted but the Crown denied that an application was made to the chief justice.

Advocate Hodes submitted that the request was made before the pre-trial on May 14, 2019 and no one mentioned this to Shongwe.
The Crown informed the registrar that the basis for the AVL request was for security reasons as the two witnesses would not be brought to the country.

Honest

“They knew about this but the accused was not informed. This is not honest,” said the advocate.
Advocate Hodes also said the Crown had the witness statements months before the pre-trial but never mentioned it to Shongwe. He said there was no basis for the non-disclosure.
“They never explained why they never notified us. Instead, they accuse us of delaying the proceedings. If they wanted to use the statements, they ought to have revealed that. It is inexcusable that they did not.”

In response, Advocate Hellens admitted that it would be better to have the witnesses come physically to the court to testify.
He went on to say there was nothing wrong with informing the registrar the witnesses could not be brought to the country for security reasons. Advocate Hellens said there was no provision in the Act that the Crown ought to have asked for Shongwe’s consent for Nkosi and Ngubane to testify through AVL.
He submitted that the consent, as per the Act ,relates to the appearance of the accused through video link. He said the Crown did not ask Shongwe to give evidence through AVL.

Implicated

Advocate Hellens asked rhetorically why it would not be in the interest of justice not to hear Nkosi and Ngubane through AVL.
“Why would you not want to hear them? They are the murderers, Shongwe is implicated, so why would the accused not want to hear them. You may find that they are lying. They are the root to the accused’s innocence.”

He explained that the non-disclosure of their statements was for security reasons in that they could have been killed.
The advocate also said it was true that there was a noose around the duo’s necks and when they give their evidence, it will be determined whether they are telling the truth or not. Today, the court will parade other witnesses in the murder trial.