CONVICTED businessman Sipho Shongwe is fighting to have his murder conviction and 50-year prison sentence overturned.
He argued that the punishment is unprecedented and that the evidence used to link him to the killing of businessman Victor Gamedze was contradictory and insufficiently corroborated.
At the same time, the Crown has asked the Supreme Court to strike Shongwe’s appeal off the roll, accusing his legal team of disregarding the court rules by filing his heads of argument four days late.
Shongwe’s appeal was set down for hearing yesterday (September 14) with the appellant challenging both his conviction and sentence arising from the January 14, 2018, murder of Gamedze at the Galp Filling Station in Ezulwini.
However, the court granted the application for late filing of the appeal and condonation.
His lawyers rely heavily on previous Supreme Court decisions, particularly the case of Hassan Kasasa versus the King, in which the apex court set aside a 50-year sentence imposed for the strangling of a three-year-old child and substituted it with 30 years.
The defence argues that the principle applied in that case should also apply to Shongwe’s sentence. The lawyers submitted that the authorities considered in the appeal show murder sentences ranging between 12 and 40 years, with a median of approximately 23 years. They further pointed to previous contract-killing cases cited in the appeal, where sentences of 15 and 20 years were imposed.
“Nothing reaches 50,” the appellant argues in his heads of argument.
The appellant contends that even after considering the upward movement in sentencing reflected in more recent cases, the highest sentence cited remains 40 years.
“50 determinate years stands outside the pattern at every point of comparison and the sentencing judgment gives no reasons, compelling or otherwise, for the departure,” the heads state.
They submitted that a 50-year determinate sentence imposed on a 54-year-old man is in substance more severe than the minimum period attached to life imprisonment. The appellant is, therefore, asking the Supreme Court to set aside the 50-year sentence. If the conviction is upheld, Shongwe wants the court to replace the sentence with a determinate term of no more than 20 years, backdated to the date of his arrest.
Crown wants appeal struck off the roll
BEFORE the Supreme Court can determine the merits of the appeal, however, the Crown wants the matter struck off the roll.
The Crown says Shongwe’s heads of argument were filed and served four days outside the prescribed deadline.
According to the Crown’s submissions, the heads were supposed to be served by August 17, but were only served on August 21. The Crown said this left it with only the weekend of August 22 and 23 to prepare its own heads, which were due on August 24.
“The Crown feels obliged to point out to this court that the Supreme Court rules are apparently ignored or disregarded with attempted impunity,” the submissions state.
The Crown further said no application for condonation had been filed by Shongwe at the time it prepared its submissions.
It argued that the time limits contained in the Supreme Court rules were designed to ensure that both the respondent and court had sufficient time to properly consider an appeal.
“The Crown submits that it is unfortunately so that the appropriate order in respect of this appeal is that it should be struck from the roll,” the Crown submitted.
However, the Crown made it clear that if the Supreme Court condoned the late filing and proceeded to hear the appeal, it would seek dismissal of the challenge against both the conviction and sentence.
Crown defends murder conviction
ON the merits, the Crown argues that the accomplices’ evidence was sufficiently corroborated by independent evidence, including CCTV footage, eyewitness testimony, telephone records and evidence relating to events at Somhlolo Stadium on the day Gamedze attended his last football match.
The Crown further submitted that the accomplices’ evidence was supported by Senior Superintendent Fakudze and other investigating officers.
It, therefore, rejected the suggestion that the High Court had failed to properly apply the cautionary rule governing accomplice evidence.
A major point of dispute is the operational cellphone number allegedly used by Shongwe. The Crown argued that the fact that the number was not registered in Shongwe’s name did not mean that he did not use it.
“It is precisely because the operation number was not registered that it was used,” the Crown submitted, likening the number to a burner phone.
According to the Crown, MTN records showed communication between the operational number and other numbers, while cellphone tower information showed that the number regularly moved between the vicinity of Shongwe’s home and his workplace.
The Crown also defended the evidence of MTN witness Mkhonto, arguing that she explained how the downloaded records worked and how they should be interpreted. It argued that the defence could have asked the trial court to recall Mkhonto for further cross-examination, but did not do so.
Challenges accomplices’ evidence
HOWEVER, the appeal goes beyond the sentence, with Shongwe seeking to have the Supreme Court revisit the evidence on which the murder conviction was based.
His lawyers argue that the conviction rests heavily on the evidence of two accomplices, Mbuso ‘Ncaza’ Nkosi and Simphiwe ‘Tata’ Ngubane, who testified under Section 234 of the Criminal Procedure and Evidence Act.
Nkosi admitted that he was the gunman who shot Gamedze.
However, during cross-examination, Nkosi agreed that the operation could ultimately have been a robbery in which the perpetrators would take the money and leave. He also agreed that no one had told him that Gamedze had to be killed and that no payment for a killing had been discussed.
Shongwe’s lawyers argue that this contradiction goes to the heart of the Crown’s case because the alleged instruction to kill Gamedze is central to the allegation that Shongwe orchestrated the murder.
The appellant further argues that the High Court could not simultaneously find that Ngubane was unaware of an alleged murder plan and rely on his evidence as corroboration that such a plan existed.
