By Sandile Nkambule | 2018-04-25

A murder suspect, who has been in jail for the past nine years without being tried, has filed an urgent application at the High Court to be released from prison.

Represented by Mafutseni based lawyer Leo Ndvuna Dlamini, the suspect Fana Shongwe is challenging the Director of Public Prosecutions and has cited His Majesty’s Correctional Services (HMCS) and the registrar of the High Court as the second and third respondents, respectively.

According to Shongwe, in his papers, he wants to be discharged and released from prison in terms of Section 136 (1) of the Criminal Procedure and Evidence Act (CPE) of 1938.

Shongwe, of Ndlalambi in the Hhohho region, was charged with murder and arson and is currently kept at the Sidvwashini Correctional facility after he was committed to the High Court.

According to Shongwe, he was arrested by the Pigg’s Peak police in September 2009 and was formally charged with murder and arson at Nhlambeni area in the Hhohho region and was further detained at the police station. He has been in jail ever since without trial.

He submitted that he was later remanded to the Pigg’s Peak Correctional facility pending his committal to the High Court for trial and stated that he was granted bail by the High Court fixed at E50 000 and was ordered to pay E15 000 cash with the rest being in form of a surety.

“I was not able to pay the bail as I could not afford and as such I have been in custody from the date of arrest to the date of the present application,” Shongwe submitted.

He stated that in June 2011, he was taken for a pre-trial conference at the High Court and was granted reduced bail but has never been enrolled or given a trial or brought to trial at the first session of the High Court six months from date of committal in terms of section 136 (2) of the CPE Act.

He submitted that his incarceration without trial violates section 21 (1) of the constitution in that he had not been afforded a fair and speedy trial within the first High Court session after his arrest in 2009 and after being committed at the high court after the pre-trial conference in 2014.

“ I verily believe that the period of eight years plus six months in custody is tantamount to a served sentence in custody in law because I have been deprived of my liberty on reasonable suspicion in terms of section 16 (1) (e) of the constitution, I have served my sentence without trial,” Shongwe submitted.

He said he has made several written requests to the registrar of the High Court for a trial date in the past sessions but nothing has come out to be a sign that his case will never be brought to trial.

The crown, according to Shongwe, will not suffer any prejudice if the provisions of section 136 (2) of the CPE Act are applied by the court, adding that the Supreme court, had ruled in his favour that the matter should be enrolled at the High Court.

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