By Bahle Gama
Lobamba MP Allen Stewart says he should have been guilty of the offence of assault with intent to cause grievous bodily harm (GBH) and not attempted murder.
Stewart made the admission through his lawyer when he was applying for bail pending appeal after the High Court convicted and sentenced him to three years without an option of a fine.
Being dissatisfied with the High Court judgement, he noted an appeal to the Supreme Court and subsequently applied for post-conviction bail which has been opposed by the Crown.
Appearing before Judge Zonke Maseko for arguments on Thursday, the defence council Linda Dlamini argued that the evidence presented before the court by the Crown was riddled with inconsistencies regarding the shooting incident involving Sibusiso Matsenjwa that took place on October 31, 2010, at Moyeni, Siteki during Stewart’s brother’s funeral.
The attorney stated that the witnesses’ evidence was contradictory in that “it is submitted amounts to a material contradiction, consequently, another court may hold such a favour of the applicant and acquit and discharge him or alternatively, convict for a lesser charge of assault GBH.”
The defence argued that the second witness asserts that Stewart was leaning against the wall a distance away from the queue at the funeral when he approached them and Matsenjwa stated that they should be left alone to see what he wanted to do. On another hand, a fourth witness said he saw Stewart in the company of two women whilst in the queue.
“These contradictions are material as they reveal the fact that the events that led to the shooting were not proved beyond a reasonable doubt,” he said.
Furthermore, the complainant gave evidence that he noticed blood dripping from his arm hence he could not rise as he was on the ground at the time the fourth witness had left him, yet that same witness testified that he gathered courage and went to help Matsenjwa run with him whilst bleeding.
“Surely, it’s either this was a deliberate attempt to conceal the true events, or they were both lying under oath. The inconsistencies are further revealed by the fourth witness that he was with the complainant all the time and that he did not see him with a knife, nor did he see him charging at the accused, yet he never went to queue for food as he retreated to his car after his attempt to talk to the Appellant was unsuccessful.”
On the other hand, another witness, a fifth one, testified that whilst he stood at his car leaning over its open door, Matsenjwa went past him to the food serving point and suddenly saw him with Stewart in pursuit carrying a gun.
“Yet under cross-examination, he conceded that from where he sat in the car, he did not see anything. All these issues create doubt which should have accrued to the benefit of the Appellate (Stewart).”
Dlamini submitted that another court would find and hold differently that despite the trial court’s finding that the evidence of the Crown and defence exhibit stark contrast, nonetheless the court held that Stewart’s 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,” submitted Dlamini.
The attorney stated that reasonable doubt should have been exercised given that the court itself found the evidence not to be conclusive of the charge that Stewart attempted to murder. This is fortified by the fact that it was the crown’s evidence that Stewart pointed a gun at Matsenjwa whilst on the ground.
“Then it boggles the mind that if there was an intention to murder, why did he not proceed to shoot the complainant,” he said.