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MPHANDLANA WANTS NO-CASE CERTIFICATE, BAIL REFUND

26/01/2021 00:28:00 BY MBONGISENI NDZIMANDZE

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MBABANE – Renowned political activist and PUDEMO founding member Mphandlana Shongwe wants the High Court to compel the DPP to either prosecute him or issue a legal notice that the Crown has abandoned prosecution against him.

The charge of allegedly contravening the Suppression of Terrorism Act has been hanging over Shongwe’s head for almost 11 years and five months now.

Shongwe is further seeking an order directing the director of public prosecutions (DPP) to refund him a sum of E6 000 he paid as bail and the variation of his bail conditions.

Compel

The political activist wants the court to also compel the DPP and the national commissioner of police to issue a nolle prosequi certificate to him in terms Section 6 of the Criminal Procedure and Evidence Act.

Nolle prosequi is a Latin word for ‘we shall no longer prosecute,’ which is a declaration made to the judge by a prosecutor in a criminal case (or by a plaintiff in a civil lawsuit) either before or during trial, meaning the case against the defendant is being dropped. The statement is an admission that the charges cannot be proved, that evidence has demonstrated either innocence or a fatal flaw in the prosecution’s claim or the district attorney has become convinced the accused is innocent.

Section 6 provides that: The DPP may, at any time before conviction, stop any prosecution commenced by him or by any other person; but, in the event of the accused having already pleaded to any charge, shall be entitled to a verdict of acquittal in respect of such charge.

In his application, Shongwe recounted that on July 18, 2009 he was arrested by members of the Royal Eswatini Police Service while in the Manzini City. “I was subsequently charged with the offence of allegedly contravening Section 11 (1) of the Suppression of Terrorism Act No.3 of 2008,” submitted Shongwe. He told the court that he was then incarcerated and later granted bail.

Reporting

He brought it to the attention of the court that he had been subjected to reporting to the Manzini Police Station every last Friday of each month, a thing he was doing even today.

“I verily believe that the criminal charges have been hanging over my head for the past 11 years and five months. I verily believe that this is a violation of my constitutional right and abuse of the country’s legal system,” contended the renowned political activist.

It was further his averment that the period of 11 years five months without trial was due to the fact that his conduct was not unlawful as per the charges that were preferred against him.

“I verily believe that the scanty, vexatious and frivolous evidence in the summary of evidence gives the DPP powers to prosecute my case as indicted. It is common cause and trite law that the DPP has since stopped to prosecute and as such has a constitutional right to issue a nolle prosequi certificate or issue a legal notice that he had abandoned prosecution.

He contended that at all material times he had been out on bail with stringent bail conditions attached. Shongwe submitted that he was applying for variation of the bail condition and refund of the money he paid as bail because the DPP was not willing to prosecute him for the charge that was preferred against him on July 28, 2009.

“I verily believe that in determination of the criminal offence, I should be afforded or given a fair and speedy hearing within a reasonable time by an independent and impartial court. I am presumed innocent until proven guilty by a competent court of law,” argued the political activist.

He informed the court that he believed that the DPP would not suffer any prejudice in the event the court granted him the orders. The matter is pending before court and the respondents are expected to file their papers in the event they are opposing the application. Shongwe is represented by Leo Ndvuna Dlamini of L.N Dlamini and Associates in Manzini.