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.

 ?? ( Pics: Kwanele Dlamini) ?? Judge Zonke Magagula yesterday reserved his judgment in Lobamba MP Allen Stewart’s ( pictured) applicatio­n for bail pending appeal.
( Pics: Kwanele Dlamini) Judge Zonke Magagula yesterday reserved his judgment in Lobamba MP Allen Stewart’s ( pictured) applicatio­n for bail pending appeal.

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