STATE WANTS SIPHO TO RUN OUT OF MONEY – HOWE

 MBABANE – The State has been accused of going all out to put murder accused Sipho Shongwe out of pocket so that he cannot afford to pay his legal representatives.

The allegation against the Crown was made by Shongwe’s attorney, Lucky Howe, where he is opposing its (Crown) application to allow the two South African nationals to testify through audio visual link (AVL).

The two South African nationals, Mbusi ‘Ncaza’ Nkosi and Simphiwe ‘Tata’ Ngubane, who are implicated in the murder of astute businessman and football administrator Victor Gamedze, have since been turned into accomplice witnesses by the Crown. The State wants them to testify through the AVL and it has moved an application to that effect.  In his opposing papers, Howe stated that the Crown will bear no cost for this application.

He said the State refused and/or neglected to meet the costs of Shongwe in terms of Section 21 of the Constitution.
Section 21(c) stipulates that: “A person who is charged with a criminal offence shall be entitled to a legal representative at the expense of government in the case of any offence which carries a sentence of death or imprisonment for life.

“The government has advised that it has no money and has further refused to respond to Shongwe in terms of its obligation to pay Shongwe’s costs,” submitted Howe. Annexed to the opposing affidavit is a copy of a letter which Shongwe’s legal team wrote to the Minister of Justice and Constitutional Affairs, where they are asking the State to pay his (Shongwe) legal costs.

“It is my humble submission that it is no wonder that the Crown can proceed in this fashion and manner, as to render Shongwe unrepresented due to inability to pay his legal representative,” argued the lawyer. He alleged that the State wanted to mulct Shongwe in unnecessary costs and litigate him into the ground.
Howe informed the court that the Crown had a bottomless pit of money and it was hiding under the protection of its duties.

Abusing

He further claimed that the Crown was abusing its right to prosecute and should be held accountable. According to Howe, the Crown had a duty to uphold the law at all times and to act in the best interest of the public. He averred that the application by the Crown was without merit and must be dismissed. Howe told the court that the State was obliged to act lawfully at all times and not abuse its authority.

“The present application is a total abuse as it is abundantly clear what the Remote Participation Act of 2018 permits. The application does not fall within the confines of the Act and can never,” contended the lawyer. He denied that the Act permitted the evidence of such witnesses to be presented in a criminal trial as alleged. According to Howe, the Act prohibited this and Shongwe did not consent to the use of AVL.

Howe told the court that it was admitted that Section 4 of the Act provided that the judicial officer should make a determination, but it further made a provision for specific requirements to be satisfied.

He alleged that the new application by the Crown was unjustifiably served without any prior notice on May 31, 2019 and called for opposition and an answering affidavit to be filed by June 3, 2019. Howe told the court that such time constraints were ridiculous but indicative of the Crown’s attitude on Shongwe’s matter. He pointed out that the Crown knew that Shongwe was in custody and would not get to see let alone consult with his legal team and provide instructions before June 2, 2019.

“This arrogant, careless and insensitive conduct should not be condoned by the court. It is callous and repugnant but displays a total disregard for Shongwe’s right to a fair trial,” argued Howe.
He said he had been instructed to submit that the application was doomed to predictable failure and should be refused by the court with an appropriate punitive costs order.

The matter where the State is seeking to use the AVL will be argued on June 14, 2019 before Judge Nkosinathi Maseko. Judge Maseko is presiding over Shongwe’s murder trial after taking over from Judge Mbutfo Mamba who recused himself from the matter.

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