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SIPHO SHONGWEâ€™S APPEAL DISMISSED

By Sandile Nkambule | 2019-04-24

The High Court of Eswatini yesterday dismissed an urgent appeal application which had been filed by businessman Sipho Shongwe against the decision of the Manzini Magistrate’s Court.

High Court Judge Mumcy Dlamini dismissed the application with no order as to costs after hearing arguments by both counsel in the matter.

Shongwe, who is a suspect in the murder of football administrator and businessman Victor Gamedze, had filed an appeal application against the decision of Principal Magistrate David Khumalo in which he (magistrate) ruled that he shall proceed with the bail application in the extradition matter at the Magistrate’s Court.

Shongwe had argued that the Magistrate’s Court as a lower court should have automatically admitted him to bail on the basis that the High Court as per Judge Sipho Nkosi had already granted him bail.

The principal magistrate, however, indicated that the extradition matter is different from that of the High Court and that he shall proceed in hearing the bail application.

When handing down judgment in the present appeal application, Justice Dlamini stated that the order issued by Magistrate Khumalo is an interlocutory order as submitted by the respondent (the Director of Public Prosecutions).

She mentioned that from Section 64 of the of the Magistrates Act, it is clear that a litigant may only appeal an interlocutory order that is definitive of its rights, noting that the order of the Magistrate’s Court is not final in that it is provisional and in terms of the act, such an order is not appealable.

Section 64 of the Act provides that; ‘a party to any civil suit or proceedings in a Magistrate’s Court may appeal to the High Court against any judgment or any rule or order in such suit or proceedings and having the effect of a final definitive sentence’ including any order as to costs.’

“Having found that the appeal pending before me is not provided for in law by reason that it is based on a strict sensu interlocutory ruling of the court of committal (Magistrate’s) it is my considered conclusion that in light of Section 64, the appellant ought to have waited for finality of his bail application before the court of committal instead of jumping the gun as it were. his appeal stands to be dismissed in this regard. in the final analysis; I enter the following orders, the appeal is dismissed with no order as to costs,” Justice Dlamini pronounced.

She further stated that to get into the merits of the appeal would be shutting the doors for both parties in the future in the event any party is inclined to appeal should the bail at the court of committal disfavour any of the parties, stressing that she could not trade on ice water on that regard.

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