By Sifiso Nhlabatsi | 2019-12-06
Murder suspect Sipho Shongwe’s bid to be out on bail has once again failed.
Shongwe had, on Tuesday, submitted that he wants his bail revived since he had paid his bail and there was nothing concrete that was giving the court the right to keep him in detention.
Judge Nkosinathi Maseko said on Tuesday he was requested by the defence team to reconsider the decision to invoke Section 145 of the Criminal Procedure and Evidence Act (67) of 1938 as amended which he issued on June 6 when he resumed presiding over the matter.
Judge Maseko said on that day when the court adjourned Advocate Mike Hellens representing the Crown raised the issue and he invited the defence to respond to the issue.
He said Sipho Shongwe’s legal team responded by saying they wished to have the accused’s bail extended although he was in custody despite having paid bail.
Judge Maseko said Ben J Simelane and Lucky Howe, senior attorneys who were present on that day did not make any further responses to Hellens’ enquiry.
Judge Maseko said it was common cause that owing to the brief response to Section 145 raised by Hellens enquiry it must be kept in mind that he (Maseko) invited Shongwe’s legal team to present their view and they chose not to speak fully on the issue.
He said he then issued the order that Section 145 should be invoked.
He said on the arguments by Simelane on Tuesday, he (Maseko) asked on why they did not raise the issue back then and why the issue of bail was never raised with Judge Mbutfo Mamba with whom the plea was taken by the accused.
Judge Maseko said Simelane was honest to state that it was an honest error on their part as a defence team.
Judge Maseko said certain arguments were raised by Shongwe’s team that Section 145 be invoked by the court to revive the accused person’s bail. In support of this argument the court was referred to the case of Nkosingphile Mjemuka Dlamini and others vs The King.
The Judge said Simelane referred to Paragraph 2 at page 9 of the judgment where Judge Matsebula stated: “having said that my finding is that Section 145 of the Criminal and Evidence Procedure Act is not automatic and absolute or mandatory”.
Judge Maseko said Sipho Shongwe’s case was different from Mjemuka’s case in the sense that while it was alleged that in the Dlamini case the Judge did not afford the attorneys an opportunity to make submissions when the bail was revoked, he on the other hand invited the defence to make submissions when the bail was revoked and the defence chose not to make any submissions or opposition in response to Hellens application.
Judge Maseko said when Simelane made submissions on Tuesday he was asked why the defence did not make any submissions to the Crown’s application and he admitted that it was a mistake.
Judge Maseko said the question then is that owing to this non-opposition, what was the court supposed to do except to exercise its discretion and invoke Section 145.
Judge Maseko also pointed out that he inherited this matter from Judge Mamba and about 11 witnesses had already been led by the Crown after the accused had pleaded to the indictment and there was nowhere in the record where the issue of Section 145 was raised by the defence and the crown before Judge Mamba.
The Judge said it defeats logic to understand why then this issue was not raised then bearing in mind that the Mjemuka case did not declare Section 145 unconstitutional.
Judge Maseko said he sincerely believed that the court had the right to deal with the matter and only the Supreme Court could now deal with whether the High Court exercised its discretion judiciously when it invoked Section 145 after an application by the Crown.
The Judge then ordered that the accused is to remain in custody pending completion of his trial.
Shongwe will now have to wait for Monday to know how his extradition case turns out at the Manzini Magistrates Court where Principal Magistrate David Khumalo is expected to deliver his ruling on whether Shongwe should be extradited to the Republic of South Africa, where he is alleged to have escaped from serving his full term.
If he is found to have not escaped, the extradition application will fail and Shongwe who was granted bail by Judge Sipho Nkosi would then be liberated pending completion of his currently ongoing trial before Judge Maseko.
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