WE WERE ABDUCTED BY SA COPS - 2 EMASWATI MURDER CONVICTS

MBABANE – South African Police are accused of having entered Eswatini through an informal crossing point, abducted two suspects from their homes and forced them to jump the border to the neighbouring country, to stand trial.

The allegation was made by the accused persons when they appeared for trial at the North East Circuit Court of the KwaZulu-Natal High Court, sitting in Mtubatuba. The two are first accused Simanga Phakathi (26) and third accused Sibonelo Mabosi Sihlongonyane (20). The second accused in the matter is Sipho Richard Mthembu, who is a South African national.
They each face the same three counts, namely a single count of attempted robbery with aggravating circumstances and two counts of murder.

Origin

These counts have, as their origin, certain events that occurred at the Pongola Rugby Club (the rugby club) situated in the town of Pongola in northern KwaZulu-Natal, on the evening of March 6, 2020. During the robbery, at approximately 10pm, on that day, a group of six men with their faces concealed by balaclavas, entered a pub situated within the rugby club that rejoices under the name of ‘Porra’s Pub’ and attempted to rob the patrons. “Shots were fired and an alleged robber, Xolani Goodenough Mtshali (the deceased) and a member of the public, Mr Shaun Mathews (Mr Mathews), were fatally wounded,” the court papers stated.

The two emaSwati said after they were abducted, they were then gagged and made to walk from their respective homes to the border fence, separating South Africa and Eswatini and made to ‘jump’ the fence. Phakathi stated that one Captain Mncwango, a member of the South African Police Service (SAPS) and a person who featured prominently throughout the trial, was present during his apprehension in Eswatini, but that allegation was not repeated by accused three. “The founding affidavits in both applications reveal allegations that both the first and third accused assert that they are citizens of Swaziland (now Eswatini). They stated that they resided in Swaziland and that while at their separate homes on the evening of  March 8, 2020, they were forcibly removed from those homes by men whom they later discovered were policemen from this country,” reads the court papers. The two said their respective apprehensions occurred an hour apart, on the same day, the first applicant being apprehended at 8pm and the second applicant at 9pm.

Gagged

“When they were apprehended, each applicant was gagged and made to walk from their respective home to the border fence between South Africa and Swaziland and made to ‘jump’ the fence. Waiting for them on the South African side of the border were numerous SAPS officers, as well as members of the Pongola Community Forum. “They were placed in a motor vehicle and were taken to the Pongola Police Station, where they were detained and from whence they have ultimately ended up before this court facing trial,” the judgment by Judge Mossop states. The two emaSwati had launched an application to have charges withdrawn against them, citing that they were unlawfully arrested in that extradition laws were not followed by the SAPS. They also wanted a declaration that they be released from the SA Correctional facility. The judge said there was no dispute about where the first and third accused resided. The only dispute is whether that was where they were when they were arrested and whether this court can make such a determination, based only on the papers, for it appeared from the outset that there was a factual dispute between the parties,” the judge said.

The SAPS refuted the allegations by the two, saying no police officer crossed the border to arrest the two in Eswatini. The SA State delivered two affidavits in opposition to the applications. One affidavit was made by Thabiso Dlakude, who was a member of the Julukatsotsi Community Policing Forum (JCPF). “Dlakude stated that on March 8, 2020, he received information that the suspects who had perpetrated the robbery at the rugby club were hitchhiking along the N2 Highway towards Pongola, in the vicinity of Sitilo, which is within the boundaries of South Africa. He and other members of the JCPF, but no members of the SAPS, proceeded to the place, where it was believed that the suspects would be found. They were, indeed, found there and he and the people that he was with apprehended them.” Dlakudze said the suspects were then taken by him and his companions to the SAPS at Pongola, where they were handed over to Capt Mncwango, who formally arrested them.

Arrested

Mncwango also deposed to the second affidavit delivered by the State and confirmed that he had arrested the suspects at the Pongola Police Station. “He had not, as alleged by accused one, ventured into Swaziland to effect his arrest: on Capt Mncwango’s version, he had not even left the town of Pongola.” When replying to the State affidavits, the two emaSwati accused persons submitted that Dlakude had no authority to represent the State, or the SAPS for that matter, and, so it was submitted that his affidavit was null and void. “It was further argued that, given the fact that Dlakude’s affidavit had to be ignored, the content of Capt Mncwango’s affidavit was consequently revealed to be constructed on hearsay allegations and is likewise to be ignored. The version of accused one and accused three should, therefore, be accepted and the application granted.”

The court rejected the argument that Dlakude lacked authority. “No authority is required by a witness to depose to an affidavit. This is an elementary concept and cannot excite any controversy, despite the force with which this point was argued by Mr Luthuli (the suspects’ lawyer). Likewise, the allegations that Capt Mncwango’s affidavit is hearsay is bereft of merit.” The court said Capt Mncwango’s affidavit was brief and simply stated that the first and third accused were brought to his office by Dlakude, who had apprehended them and he then arrested them. “That is not hearsay, but is the record of his own conduct. Nothing of any merit is, therefore, to be found in the replying affidavits,” the court said. They were all found guilty of murder and robbery and are now awaiting sentencing.

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