Times of Eswatini
MP Stewart not a flight risk - lawyer
MBABANE – Faced with the question of how society would view the release of Lobamba MP Allen Stewart, his attorney said there was no need to keep him in jail if he met all requirements for bail.
Stewart, who was sentenced to a custodial sentence of three years last Friday by Judge Doris Tshabalala, was in court yesterday for the hearing of his bail pending appeal application. The matter was heard by Judge Zonke Magagula, who reserved his judgment yesterday. The judge asked both legal representatives what the perception of the public would be about the operation of the court if the Member of Parliament ( MP) was released.
Linda Dlamini of Linda Dlamini and Associates, who represents the MP, said there would always be public perception about the operation of the courts. He said, however, if Stewart passed the yardstick and proved all that had to be proved for a judgment in his favour, there was no need to keep him in jail.
Dlamini told the court that a sentence of three years was not enough to induce the MP to flee. “This court has released people who had received stiffer sentences,” said Dlamini. Senior Crown Counsel Khumbulani Mngometulu, on t he question of public perception and status of the MP, said the Constitution provided for equality for all under the law. He said there was nothing wrong with keeping the MP behind bars pending his appeal.
In his submissions, Dlamini argued that the courts constantly stated t hat all an applicant needed to do was to file a notice of appeal setting out the grounds of appeal. He said where the matter would be heard by another court, other than the trial court, he must file an affidavit setting out the background of the matter and the grounds of appeal and then the court could deal with the bail application of that convicted person pending the appeal.
He informed the court that in applications for bail pending appeal, the appellant had the onus to show the existence of reasonable prospects of success on appeal by showing that the trial court misdirected itself and that another court may decide the matter differently. Dlamini disputed that Stewart was a flight risk. In the MP’s case, he submitted that the applicant was not a flight risk and in his affidavit in support of the bail application had stated that he was born and bred in Eswatini, is an MP as well as a businessman.
Dlamini told the court that there were prospects of success on the applicant’s appeal which were determined, by considering if there was any chance that another court may find and hold differently from what was found and held by the trial court ‘ as opposed to enquiring whether or not the trial court found and held correctly as that is the preserve of the appellate court’. “Another court may find and hold differently that despite the trial court’s finding that the evidence of the Crown and the defence exhibit stark contrast but none the less the court held that his guilt was proven beyond a reasonable doubt.
“Surely, another court might find that given the inconsistencies which have been well noted by the trial court, there was no evidence to suggest that his guilt was proven beyond a reasonable doubt. Another court may find and hold that reasonable doubt should have been exercised given that the court itself found that the evidence is not conclusive of the charge that applicant attempted to murder. This if fortified by the fact that it was the Crown’s evidence that applicant pointed a gun to the complainant while on the ground, it then boggles the mind that if there was any intention to murder, why did he not proceed and shoot the complainant,” argued Dlamini.
He said another court may find and hold that it was a misdirection on the part of the trial court to place reliance on the applicant having failed to answer certain questions as he bears no onus of proving his guilt or innocence throughout a criminal trial. “Another court may find and hold that the Crown’s evidence is riddled with material inconsistencies pertaining to the incident. The witnesses which the above honourable court held that they corroborated each other, their evidence is contradictory and such a fact, it is submitted amounts to a material contradiction. “Consequently, another court may hold such in favour of the applicant and acquit and discharge him or alternatively convict of a lesser charge of assault with intent to cause grievous bodily harm,” he said.
The defence pointed out contradictions which Dlamini said were material. The issue pertained to how the shooting unfolded ‘ as it is apparent that the complainant as well as PW4 and PW5 gave an inconsistent narration of the events’.
The Crown is represented by Senior Crown Counsel Mngometulu, who told the court that it was not in the interest of justice to release Stewart on bail pending appeal. He submitted that the MP was likely to abscond the prosecution of his appeal, ‘ regard being had to the period of three- year sentence without an option of a fine’.
He admitted that an accused person bears no onus of proving their innocence and he submitted that there were no prospects of success attendant to the appeal. “The court correctly made a finding of guilty against the applicant based on the credible evidence adduced during the trial. There is absolutely no court that may arrive at a finding different from that of the trial court. That the court found the evidence for and against applicant at variance does not entitle him to an acquittal.
“The court merely found that the events giving rise to the shooting stood at stark contrast. However, what stands out here is that the court found that applicant’s life was under no risk or danger when he fired t he shot t hat struck the victim. This finding finds support from the account given by the Crown witnesses that the ( victim) was in full flight when he was shot at,” Mngometulu told the court.
He stated that in the medical report, the medical practitioner demonstrated the bullet entry and exit wound. The medical report, according to the senior Crown counsel, showed that the bullet entered at the back and exited at the front part of Sibusiso Matsenjwa’s arm. Stewart yesterday said he would call an independent witness to challenge the evidence of the medical practitioner, especially because he was not the one who authored the medical report.