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MBABANE – Sipho Shongwe will be in court today for the hearing of his appeal against his extradition to the Republic of South Africa.

In November 2021, Judge Justice Mavuso dismissed Shongwe’s application in which he was challenging an order by Manzini Principal Magistrate David Khumalo, that he be extradited to South Africa.

The judgment meant that if acquitted in the murder charge, Shongwe would be immediately sent to South Africa and if convicted, he would be extradited to the neighbouring country upon completion of sentence.

Judge Mavuso went on to confirm the principal magistrate’s decision that Shongwe should be extradited to the Republic of South Africa. In the Kingdom of Eswatini, Shongwe stands accused of having a hand in the murder of businessman and football administrator Victor Gamedze.

In its judgment, the court said it found no merit on the assertion by Shongwe’s legal team that the timing of the extradition application being brought immediately after the murder charge constituted a mala fide act by the requested State (Eswatini).

Judge Mavuso stated that Shongwe did not present his side, but chose to exercise his right to remain silent.

The court said with Shongwe having exercised his right to remain silent and with the only evidence available to it being that of the Crown, it did not think the principal magistrate had any other choice other than to draw the inference alleged, be it from conduct, post the alleged offence or prior to the commission of the offence thereof.

“As it is, I had to rely on the record, less any explanation from him. The court has no doubt that the appellant (Shongwe) occasioned delay in this matter by rendering himself incognito from the date of his exit from prison to the date of his arrest by the Royal Eswatini Police Service (REPS),” said Judge Mavuso. He said the question which he had to decide on was whether the delay in the institution of the proceedings would result in injustice or oppression upon Shongwe’s defence at a future date.

Judge Mavuso also dismissed the assertion by Shongwe’s legal team that all the evidence that was presented was hearsay and irrelevant. “From the evidence presented before the trial court, it is clear that the appellant was an inmate at Barberton Maximum Prison, that he, one way or another, left the prison before completion of the sentence and he was apprehended in Eswatini,” said Judge Mavuso.

During the argument of the matter, Principal Crown Counsel Macebo Nxumalo submitted that there was no direct evidence as to who prepared the warrant which was presented for Shongwe’s release from prison.

According to Nxumalo, a call was made to the Pretoria High Court and they were informed that the warrant was a copy and the original would be sent through.

Distinction

Advocate Twain Ngwenya, who was instructed by Noncedo Ndlangamandla, said there was a distinction between an escaped prisoner and one who had been released erroneously. He said an escaped prisoner would be readmitted to prison to serve his full sentence as it would have been postponed while he was on the run.

On the other hand, according to Ngwenya, a prisoner who had been erroneously released would only be readmitted to serve the rest of the sentence. He said one who had been released erroneously would not be charged with any offence ‘or rather there is no wrongdoing imputed to him for the release’.

When issuing the judgment, the court said: “The respondent (Shongwe) must go back (to SA) to serve his outstanding sentence and answer for the escaping, forgery and uttering charges.”