Sheriff held for 5 women’s shooting wants release
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’.