Times Of Swaziland: EMOTIONS AS: SHIRLEY’S  MUM, BROTHER FORGIVE TRUCK DRIVER

EMOTIONS AS: SHIRLEY’S  MUM, BROTHER FORGIVE TRUCK DRIVER
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Kwanele Dlamini on 10/08/2024 08:01:00


MBABANE – It was emotions all around yesterday as Shirley Motsa’s mother and
brother forgave the truck driver, who knocked her down with the vehicle he was
driving.
Stephen Shuping (43) of Virginia Free States, South Africa, was driving a
Mercedes Truck registered HXS 907 FS on the fateful day and Motsa, was jogging
along the MR3 Public Road near Manzana. Shuping was at the High Court yesterday,
for the hearing of his appeal of his custodial sentence, which was issued by
Principal Magistrate Fikile Nhlabatsi. The principal magistrate sentenced
Shuping to five years without an option of a fine for culpable homicide. He was
fined E5 000 for driving the vehicle, while under the influence of alcohol.
Through his attorney, Sinakekelwe Mhlanga of Mabila Attorneys, Shuping filed an
appeal of the sentence.
After the appeal was heard by Judge Nkosinathi Maseko, the mother of the cyclist
and her brother requested to see Shuping. They remained in the courtroom after
everyone else had left.
That was when they informed Shuping that they understood that what happened was
an accident and forgave him. This was after Judge Maseko had reserved judgment
on the appeal. Shuping’s attorney and the Crown’s representative were
present.
Argued
When the appeal was argued, Mhlanga, on behalf of Shuping, argued that the
charge sheet fell short of the elements of culpable homicide in the first
charge. She said the magistrates court erred in law and in fact by finding
Shuping guilty of culpable homicide, when the charge sheet allegedly did not set
forth the offence with sufficient particulars reasonably to inform him of the
nature of the charge. Mhlanga also argued that the magistrates court erred in
law and in fact by not giving him an option of a fine in the charge of culpable
homicide. She further submitted that there was no sufficient reason why the
magistrates court ordered that the custodial sentence in the charge of culpable
homicide should run consecutively with the drink-driving offence, for which he
was fined E5 000. Mhlanga told the court that the sentence was too harsh and
induced a sense of shock.
Mhlanga pointed out that the negligent driving of her client was not the
proximate cause of the death of the cyclist because she also contributed by
being on the road, where she was not, by law, supposed to be. “It’s common
knowledge that that accident happened on the MR3 Highway. The deceased was never
supposed to be on that road in the first place as pedestrians are prohibited on
that road,” Mhlanga said. The Crown on the other hand, submitted that the
details on the charge were sufficient for Shuping to appreciate the nature of
the offences he was said to have committed. It was also submitted by the Crown
that if Shuping was sober, he could have avoided the accident.
Deter
The sentence, according to the prosecution, was meant to deter other would-be
offenders. Judge Maseko asked the prosecution: “What of the deceased who was
not supposed to be there?” He also asked: “What deters the pedestrians from
being on that road?” The judge also pointed out that it worried him that when
Shuping appeared at the magistrates court, where he signed a statement of agreed
facts, admitting that he committed the offences, he did not have legal
representation.  Judge Maseko said it also worried him that Shuping was a
first-time offender, but he was given a custodial sentence for culpable
homicide, yet Motsa was not supposed to be on that road. In his application at
the High Court, Shuping, who has spent about five months behind bars, told the
court that he was desirous of being released on bail, while awaiting the hearing
of his appeal.
He submitted that the court does have the power to admit him to bail pending the
hearing of his appeal, as so long as it can be demonstrated that he is not a
flight risk. He undertook to remain in the Kingdom of Eswatini until the appeal
was heard and finalised, and further to appear in court whenever called to do
so. “There is nothing to suggest that I will not be able to serve my sentence
in the event of my appeal being unsuccessful. “The administration of justice
will not be endangered if I am admitted to bail. “The honourable court is at
liberty to impose conditions stringent enough to ensure compliance with all
directives it may issue in this matter,” Shuping submitted. He further argued
that in considering his application, the High Court may also take cognisance of
the fact there are prospects of success on his appeal.
Advised
He said he had been advised that the prospects of success were determined by
considering if there was any chance that another court may find and hold
differently from what was found and held by the trial court, as opposed to
enquiring whether or not the trial court found and held correctly. Motsa was a
well-known cyclist. She was a founding member of the NewComm Wheels Cycling
Club, Eswatini Cycling Association (ECA) Treasure and a Golden Foot Club member,
as well as the Chief Financial Officer of National Maize Corporation (NMC). She
met her death while jogging along Manzana Road in Mbabane at around 5am.