‘NOT ENOUGH EVIDENCE TO REFUSE MASHUMI BAIL’

MBABANE - “There are more questions than answers on the charge that the applicant is facing.”

These sentiments were shared by Judge Sabelo Masuku when he admitted to bail football administrator, Mashumi Shongwe yesterday. The judge said there was no sufficient evidence that was placed before the court that bail should be refused. Shongwe had been in custody for two months after having been arrested on March 24, 2023. He is facing a charge of murder after the death of his wife, Tigezile Magongo, who was a police officer. The charge sheet states that Shongwe acted jointly with an unknown individual, who is being sought, when committing the murder. Magongo was killed on November 30, 2022. It was one of the court’s findings that the information that was given by the investigating officer to substantiate the charge against Shongwe and to justify his detention before trial was scanty or not sufficiently supported for it (court) to justify his incarceration pending trial.

Shongwe was yesterday admitted to E50 000 bail but ordered to pay E10 000 cash and provide surety for the balance. In his judgment, Judge Masuku stated that: “I find that the specific facts of his state of health, is likely to be prejudicial to him if he continues to be detained in custody. “This is a case where his release from custody should precede over the risk likely to befall the administration of justice if he was to breach the bail conditions and evade trial.” It was further the court’s observation that the investigating officer did not come out clear on the question whether investigations had been completed or not. The judge noted that, the investigating officer did not mention if Shongwe was released on bail, he was likely to influence the Crown’s witnesses.    

In his opposing affidavit, the investigator only highlighted that Shongwe was aware of the evidence against him, without narrating the evidence of such knowledge. He also averred that the witnesses were people who could be closer to Shongwe or his late wife. The officer submitted, and in the process admitted, that Shongwe had not been served with the statement to be fully aware of the witnesses to testify in his case.   

Averred

He, however, averred that Shongwe was aware of them. In its judgment, the court found that the prosecution failed to demonstrate to it that Shongwe would interfere with its witnesses in the event he was released on bail. “It would seem to me that there is still a lot of uncertainty at this stage with the witnesses that are likely to testify and to even ascertain their relationship with the applicant,” said Judge Masuku. The court said Shongwe’s evidence was much plausible. During the hearing of his bail application, Shongwe submitted that the investigating officers had made full investigations on the matter and they took statements. This, he said, should be drawn from the investigator’s narration of the alleged five attempts by hit men to kill Shongwe’s wife.  Judge Masuku said surely, the evidence must have been drawn from the statement of the witnesses.

The court agreed with Shongwe’s averments that there was, therefore, no question of interfering with the police investigations.“I should also accept the applicant’s contention that the prosecution did not disclose the identity of the witnesses and the relationship they have with the applicant. “Whether those witnesses, apart from making statements, are willing to have their statements included in their testimony is not known,” reads part of the judgment. The court also noted that the relationship of the applicant to the witnesses and the extent to which they would be influenced or be intimidated by Shongwe was also not known. “The police officer’s sworn statement is bald and not supported. The question still remains, what relationship do these witnesses have with the applicant, who are these witnesses? This is the information that would have assisted the court to discern on whether or not the witnesses are likely to be influenced or intimidated by the applicant,” said Judge Masuku.  

Failed

He said the conclusion was, therefore, that the Crown failed to establish the likelihood of intimidation or interference by the applicant to its witnesses. The court pointed out that the prosecution had also submitted that if Shongwe was released on bail, same might endanger the safety of the public and that it would result in public shock and lack of confidence in the justice system. The prosecution, according to the court also contended that killing of women at the hands of their lovers was prevalent and the release of the applicant would undermine the public’s confidence in the criminal justice system. Judge Masuku said, the investigating officer did not, however, state in what way this might happen and there was no evidence from which the court could reach such a conclusion. He said he could not find any evidence by the investigating officer to that effect.   

The court went on to state that the investigating officer ought to have done more, by showing in the answering affidavit, how the release of the applicant would cause a sense of shock and outrage of the community, which would result in public disorder. “The respondent (Crown) has failed to discharge the onus as an assertor that the applicant should not be released on bail.
The facts or evidence supporting the charge falls short of the required standard and proof and do not substantiate sufficiently that the charge falls under Fifth Schedule of the Criminal Procedure and Evidence Act to shift the onus to the applicant.,” said the court.

Refuse

Judge Masuku said he was fortified that no evidence had been placed before him by the respondent, that he should refuse admitting Shongwe to bail.  It was also his finding that, there were no facts or evidence sufficient to support that the charge against the applicant fell under the Fifth Schedule to shift the onus on to him, to adduce evidence of exceptional circumstance. The court said it was of the view that any risk of absconding trial that might arise if Shongwe was released on bail could be well guarded against by the bail conditions it attached to his release. As part of his bail conditions, Shongwe was ordered to surrender his travel document, valid international passport to the investigating officers and not to apply for a new one, report on the last day of every month at the Nhlangano Police Station between 8am and 4pm, refrain from communicating or interfering with Crown’s witnesses and provide the investigating officers with his residential addresses on his release. Shongwe was represented by Sandile Dlamini who was being assisted by Senior Lawyer Ben J Simelane, while appearing for the Crown was Sandile Mdluli from the chamber of the director of public prosecutions.

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