Lazarus has case to answer

2014-06-14 00:00

THE man on trial for impersonating the late Maskandi musician Kwakhe Khulekani Khumalo, known as “Mgqumeni”, failed in an application to be acquitted at the end of the state’s case on the majority of the charges facing him yesterday.

These include fraud, kidnapping and rape.

Regional court magistrate Rose Mogwera noted that attorney Johan Botha, who represents the accused — Sibusiso “Lazarus” Gcabashe — had raised “some very valid points” when arguing that the state failed to prove its case against Gcabashe and that he should be discharged without his being required to defend himself.

The Constitution makes it clear that if the evidence presented by the state is insufficient, or is so poor that no reasonable court could convict, an accused should be acquitted forthwith.

However, considering the evidence and the submissions made by both state prosecutor Nkonzo Mlotshwa as well as Botha, Mogwera concluded that there is indeed a case for Gcabashe to answer in respect of all but one of the charges facing him involving theft of cellphones.

Mogwera said nothing more than suspicion existed that Gcabashe took the cellphones in question, and he had to be given the benefit of the doubt on that count.

Of the fraud charge, Mogwera said she disagreed with Botha’s argument that the state didn’t prove that anyone suffered potential or actual prejudice as a result of Gcabashe’s alleged impersonation of the late “Mgqumeni”, even if there was evidence to show that he was “not the person who was buried”.

She said prejudice is not necessarily a question of monetary loss. “In this matter more than one state witness testified about the effect that this misrepresentation had on his or her life,” she said.

Mogwera said wives and family members of the late Maskandi artist had given evidence about how Gcabashe’s behaviour impacted on them.

Even his own sister gave evidence against him and testified about how his impersonation of Khumalo had affected their mother’s health.

Concerning the kidnapping and rape charges, Mogwera said she also could not agree that the evidence of the alleged victim was so fraught with improbabilities that it should be rejected out of hand. “In my opinion the accused does have a case to answer to and he must be put on his defence,” she said.

The case was postponed until June 27 to enable Gcabashe’s attorney to decide whether or not the accused should testify or remain silent. He also has the option to call other witnesses to testify on his behalf.

Gcabashe sat calmly in the accused’s dock throughout the proceedings yesterday, showing no emotion. There were surprisingly few people in the public gallery for the case that has to date drawn large crowds of both Gcabashe’s supporters and detractors.

At one court appearance earlier this year Gcabashe burst into song after the magistrate left court.

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