Times of Eswatini

Sheriff held for 5 women’s shooting wants release

- Kwanele Dlamini

MBABANE – The deputy sheriff who is incarcerat­ed for allegedly shooting five women at Goje Township in Ezulwini says the court must release him, either conditiona­lly or with reasonable conditions.

Four of the shot women died and one survived. The incident happened in October 2023. The deceased are the accused’s girlfriend Khulile Shongwe, Lungile Shongwe, Nonhlanhla Thwala and Fikile Shongwe. Thuli Mkhwanazi survived.

The Deputy Sheriff, Vusi Mncina, has been charged with murder – an offence under the fifth schedule. He filed an applicatio­n for bail at the High Court and the Crown is opposed to it. The matter was scheduled for argument yesterday. It was, however, postponed to March 28, 2024.

In his heads of argument, Mncina told the court that his bail applicatio­n was predicated on Section 16(7) of the Constituti­on. The section provides that: “If a person is arrested or detained as mentioned in Subsection (3) (b) then, without prejudice to any further proceeding­s that may be brought against that person, that person shall be released either unconditio­nally or upon reasonable conditions, including in particular such conditions as are reasonably necessary to ensure that the person appears at a later date for trial or for proceeding­s preliminar­y to trial.”

According to Mncina, who is represente­d by Azi Hlatshwako of L.N. Dlamini and Associates, it was clear that the Constituti­on, in mandatory language; commands the court to release an accused person, who is detained pursuant to being suspected of having committed an offence or is about to commit one.

He said the offence referred to in the section includes an offence listed in the fifth schedule.

He argued that the section served one function; that of emphasisin­g the presumptio­n of innocence. Mncina also told the court that the Legislatur­e did not subject it to any other law.

“The Legislatur­e simply removed the discretion of the court in so far as releasing an accused person is concerned. The only part to which discretion of the court remains intact, is with respect to releasing an accused person unconditio­nally or upon reasonable conditions,” Mncina submitted.

According to Mncina, the court is to apply Section 16 (7) not as a choice, but as a must. He said the court was bound to do so by virtue of Section 14 (2) of the Constituti­on.

Section 14(2) provides in part that: “The fundamenta­l rights and freedoms enshrined in this Chapter shall be respected and upheld by the executive .... and the Judiciary and others and shall be enforceabl­e by the courts as provided in this Constituti­on.” “The above Honourable Court is implored to consider exercising its discretion in so far as the second leg of Section 16 (7) is concerned. And the second leg is that of either stipulatin­g conditions or not. The court’s discretion in so far as the question of releasing the applicant does not arise at all,” said Mncina.

The accused pointed out that the Crown sought to base its opposition on the provision of Sections 95 and 96 of the Criminal Procedure and Evidence Act, 1938 (CP&E).

He informed the court that this argument overlooked one issue, ‘and the issue is that the CP&E cannot be interprete­d to take away a right enshrined in the Constituti­on.

He went on to argue that the emphasis and the interpreta­tion ascribed to Section 96 (12) (a), that an applicant for bail fails in applicatio­n to adduce evidence of assistance of exceptiona­l circumstan­ces, without any further ado, that applicant could not be released from custody is fallacious.

“Bail is not the only remedy on the basis of which a person detained can be released from custody. The Legislatur­e, since 2005, has created a constituti­onal remedy, on the basis of which a person can be released. Bail can be a condition and not an end in itself.

“Section 16 (7) of the Constituti­on is not subservien­t to Section 95 and 96 of the CP&E. As such, an interpreta­tion given to Section 96 (12) (a) of CP&EA must not seek to defeat the object of Section 16 (7) of the Constituti­on,” Mncina submitted.

He pointed out that, crucially, his bail applicatio­n was opposed mainly on the basis that he had failed to adduce evidence of the existence of exceptiona­l circumstan­ces as required by Section 96 (12) (a) of the CP&EA.

He denied that he failed to adduce such evidence. The deputy sheriff stated in his founding affidavit that he suffered from gout arthritis and ulcers having been worsened by high stress levels due ‘to the regrettabl­e fact that human life was lost in such a manner’.

The Crown said: “May I state that the ailments (gout and ulcers) applicant alleges he suffers from are common ailments which the Correction­al Services, with its in-house medical

care, can cater for such.”

Mncina said the Crown did not deny that he was of ill-health, and suffered from gout and ulcers.

On another note, Mncina said the DPP had, in her filed certificat­e of confirmati­on, confirmed that the accused was charged with offences under the fifth schedule.

“Without the aid of evidence led to prove that indeed, applicant committed murder that was planned or premeditat­ed, the confirmati­on by the acting DPP is without a basis,” he argued.

The applicant submitted that the wording of the fifth schedule in murder, when planned or premeditat­ed, presuppose­d that evidence, in order to prove this, must have been led and subjected to cross-examinatio­n to test, among other things, the credibilit­y of witnesses.

ADVANCED

He said the grounds of opposition advanced by the Crown could not be sustained.

According to the Crown, the fact that Mncina has eight children and an unemployed wife to support is not an exceptiona­l circumstan­ce.

The Crown denied that Mncina’s ailment amounts to an exceptiona­l circumstan­ce.

Parliament, according to the Crown, enacted Section 96(12)(a) to deter and control violent crimes and limit the right of an accused person to bail in the interest of justice. The Crown also informed the court that Mncina is facing numerous charges which may induce him to flee because of the stiffer sentence that might be imposed by the court ‘as there is overwhelmi­ng evidence that the applicant committed the offences he is charged with. Murder on conviction attracts more than 20 years’.

 ?? (File pics) ?? Murder accused Vusi Mncina says the court should comply with Section 16(7) of the Constituti­on, not as a choice but as a must. (R) Some of the police officers found at the scene where the deputy sheriff allegedly shot his girlfriend and her friends.
(File pics) Murder accused Vusi Mncina says the court should comply with Section 16(7) of the Constituti­on, not as a choice but as a must. (R) Some of the police officers found at the scene where the deputy sheriff allegedly shot his girlfriend and her friends.
 ?? ??
 ?? ?? The entrance to the house where five women were shot.
The entrance to the house where five women were shot.

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