Crown: Witnesses in danger, cites social media audio

MBABANE – The audio that went viral on social media, in which one of the speakers alleged to be Mashumi Shongwe, has been cited by the Crown when it justified that some of its witnesses are in danger, hence concealing their names on their statements.

The Crown yesterday told the High Court that some witnesses in Shongwe’s murder trial could be in danger, citing the audio recording containing a request to eliminate witnesses.

The submission was made before Judge Sabelo Masuku when Shongwe appeared for what was scheduled to be the first day of trial for the murder of his wife, Tigezile Magongo, a police officer who was shot at their home in Nhlangano on November 30, 2022.

Prosecuting Counsel Ngcebo Lukhele told the court that the Crown had information suggesting that some witnesses faced potential danger. He said the prosecution had obtained an audio recording through open-source intelligence, which allegedly contained a communication in which a request for some witnesses to be eliminated was made.

The audio, which was widely circulated on social media, featured a speaker requesting a man believed to be a traditional healer to eliminate some witnesses and a High Court judge.

Judge Sabelo Masuku is presiding over the case of the murder accused.

The prosecution’s submission arose during arguments over statements served on the defence, some of which had been redacted to conceal the identities and addresses of witnesses.

Lukhele explained that the prosecution had withheld certain details to protect witnesses. He said the Crown would file an application seeking authority from the court to redact the statements, allowing the defence to respond before the matter proceeded.

Judge Masuku subsequently directed that the case return on November 3, 2026, for a call to establish whether the proposed application concerning the redactions would still be necessary.

The trial had been scheduled to proceed when Lukhele informed the court that the defence had received two statements the previous day and needed time to study them and consult Shongwe.

He explained that the statements had been obtained outside Eswatini and that protocols had to be followed in sourcing the material from South African counterparts.According to Lukhele, the prosecution only secured the statements on Thursday and Friday of the previous week, enabling him to serve them on the defence on Monday.

He said Shongwe’s attorney, Ben J Simelane, had indicated that he needed time to examine the statements and consult his client.

Lukhele also informed Judge Masuku that the defence had raised concerns about earlier statements in which the identities and addresses of certain witnesses had been concealed. He said the Crown was prepared to respond if the defence filed an application challenging the redactions.

Simelane, however, told the court that the defence was not ready to proceed with the trial because of the late service of the two statements. He said the documents were crucial and that the defence had not been afforded sufficient time to consider them.

Some of the activists against gender-based violence, and relatives of the late Tigezile Magongo who attended the case said they were seeking justice for her.

He also objected to what he described as the prosecution’s practice of serving statements in instalments and redacting identifying information without first obtaining permission from the court. Simelane argued that the redactions could interfere with Shongwe’s ability to challenge witnesses’ credibility and confront them with previous inconsistent statements.

He referred the court to the case of Phindile Gwebu, which he said established that an accused person or their legal representative was generally entitled to the contents of a police docket, subject to recognised exceptions.

According to Simelane, those exceptions included circumstances involving the identification of an informer or security considerations, among others.

He argued that the prosecution could not simply remove information from statements without first approaching the court for authorisation.

Simelane told Judge Masuku that Section 89 of the Criminal Procedure and Evidence Act requires statements to reflect information such as the witnesses’ names and addresses. He explained that, without identifying information, the defence could face difficulties establishing whether a witness appearing in court was the same person who had made the statement.

As an example, he said it would be difficult to confront a witness with an alleged inconsistency about a vehicle being red if the statement did not adequately identify its author.

An inscription on the T-shirts worn by some of the activists who were in court for the trial.

He maintained that the redactions could limit the defence’s ability to test the consistency of witnesses’ accounts and challenge their credibility during cross-examination.

Judge Masuku asked Simelane whether he had examined the statements served on the defence.

The attorney explained that there were two sets of statements. The two received the previous day had not been redacted, but the defence needed additional time to consider them. His objection concerned the earlier statements from which identifying details had been removed.

When Lukhele reiterated that the redactions were intended to protect witnesses, Judge Masuku asked whether the prosecution relied on any exceptions that could justify withholding the information.

Lukhele responded that there were exceptions, claiming that some witnesses were in danger.

He told the court that there had been communication involving the accused and one of the witnesses concerning the case. He further stated that the prosecution had obtained an audio recording through open-source intelligence in which some witnesses were allegedly targeted for elimination.

“There are exceptions. Some of our witnesses are in danger. There is communication the accused made with one of our witnesses regarding this case and through open source intelligence, we have an audio to that effect stating that some of the witnesses have to be eliminated,” Lukhele alleged.

The recording, which circulated widely on social media, also included a request concerning a High Court judge.

Simelane challenged the manner in which the allegation was presented, questioning whether Lukhele was in a position to testify about the matter and arguing that the submission risked placing unfounded allegations before the court.

Judge Masuku then considered the implications of the prosecution’s claim that the witnesses needed protection from potential danger. The judge observed that, if the allegation was true, the issue could not be decided hastily. He further stated that, if the prosecution wished to obtain permission to redact the statements, it was the Crown’s responsibility to bring the appropriate application before the court.

Lukhele subsequently indicated that the prosecution would file the application tomorrow, after which the defence would be given an opportunity to respond.

Ben J. Simelane (L) represents the accused, while Ngcebo Lukhele (C) and Patrick Mkhatshwa appear for the prosecution.

Simelane proposed that the parties return to court on November 3, because it might not be necessary to proceed with the application if the trial could continue. He said he would inform the Crown today whether the defence still considered the application necessary.

The court directed that the matter return on November 3, for a call to establish whether the proposed application concerning the redacted statements would proceed. Lukhele appears for the Crown alongside Patrick Mkhatshwa, while Simelane represents Shongwe.

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