SIPHO WANTS AVL JUDGMENT STOPPED

MBABANE - Murder accused Sipho Shongwe has filed an urgent application to stay the delivering of a judgment in the matter where the Crown wants to parade two of its witnesses through AVL.

The two witnesses the State intends to lead through Audio Visual Link (AVL) are Simphiwe ‘Tata’ Ngubane and Mbusi ‘Ncaza’ Nkosi.
Nkosi and Ngubane are currently incarcerated in the Republic of South Africa and they are accomplice witnesses in the Victor Gamedze murder case.
Judge Nkosinathi Maseko, who is presiding over the matter, previously indicated that he would issue his judgment on the AVL application on or before December 3, 2019.

In his application which has been filed under a certificate of urgency, Shongwe averred that during the argument of the case (AVL application), the Crown concealed that Advocate Jacques Nel, who was representing the duo of Ngubane and Nkosi in the Republic of South Africa, withdrew his services.

Deposed

During the hearing of the AVL application, Advocate Nel deposed to an affidavit wherein he stated that the two accomplice witnesses were ready to testify in the matter. The Advocate further stated that Ngubane and Nkosi consented to the AVL being used during the trial proceedings against Shongwe as they would be giving evidence.

Shongwe wants the affidavit of Advocate Nel to be struck out not only as hearsay but further on basis that the Crown was aware that the advocate had withdrawn his services.
 He also wants the court to dismiss the application for the AVL with an order for costs at attorney and own client scale, including the cost of Counsel for the application.

He informed the court that prior to the proceedings he (Shongwe) raised issues concerning the authority of Advocate Nel, who filed an affidavit on behalf of the Crown.

“My notice to strike out was not dealt with at the hearing and the prosecution relied on the affidavit of Nel as a supporting affidavit on behalf of Nkosi and Ngubane,” submitted Shongwe.

He told the court that it had now transpired and recently brought to his attention that the services of Advocate Nel were previously terminated prior to the argument of the AVL application.

Withdrew

He informed the court that on September 11, 2019 Nel and the attorney of record withdrew as the legal representatives of both Ngubane and Nkosi.
According to Shongwe, on September 19, 2019, Ngubane and Nkosi were then represented by Ms Mahumbane and the application for the extradition was postponed to November 26, 2019.

These are allegations whose veracity is still to be tested in court and the Crown is yet to file its papers.
“The prosecution at all material times was well aware that the matter had been postponed to November 26, 2019 and further that Nkosi and Ngubane were no longer represented by Advocate Nel,” argued Shongwe.

He alleged that at the hearing of the matter (AVL) the prosecution advised the court that Nkosi and Ngubane were ready to proceed and give evidence the day after the application was heard.
“This clearly indicates that the prosecution was in communication with the said witnesses (Ngubane and Nkosi) and therefore, was well aware that Advocate Nel was no longer representing them,” he argued.

He told the court that he had no doubt that the prosecution was aware of same and did not inform the court that Advocate Nel was no longer instructed.
Shongwe said: “It is my humble submission that this information was deliberately withheld from the court to my detriment and prejudice.”
He averred that the prosecution relied heavily on the consent given by Nkosi and Ngubane supposedly through the affidavit of Advocate Nel, which was challenged by the defence counsel.

Withheld

He alleged that the information was withheld by the prosecution because its whole application hinged on the affidavit of Advocate Nel, which supposedly consented on behalf of both Ngubane and Nkosi.

“Without this consent, the prosecution has no evidence from Ngubane and Nkosi and it is important in its (Crown) application that they maintained the perception of consent by them,” submitted the accused.
 According to Shongwe, the prosecution was duty-bound and obligated both legally and ethically to disclose to the court that Ngubane and Nkosi now had a new legal representative.

He further argued that the Crown was legally obligated to approach the new legal representative of Ngubane and Nkosi, to ascertain and confirm that they consented as Advocate Nel had submitted in his affidavit.

“The new legal representative could have given different advice and as a person providing the legal representation she has to consider the options and make a determination,” contended Shongwe.

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