Cops to be subpoenaed on Soweto shooting

By Drum Digital
28 February 2012

Four police officers will be subpoenaed to testify in the bail application of student constable Sipho Mbatha, who is accused of shooting dead a Soweto teenager, the Independent Complaints Directorate said on Tuesday.

"This morning [Tuesday] we got a report that they [four police officers] are not going to come," ICD spokesman Moses Dlamini said outside the Roodepoort Magistrate's Court.

"They are going to be subpoenaed so that they appear on the 16th of March. The court needs to corroborate some of the information that came out yesterday."

Mbatha, 41, was arrested on February 17 after allegedly killing 16-year-old Thato Mokoka by shooting him at Braamfischerville Phase Two three days earlier.

Mokoka was shot three times, apparently while lying on the ground on his stomach outside the home of his grandmother Sybil Mokoka.

"Serious allegations were placed in front of the court that the accused tried to commit suicide or has a mental instability and this can have a bearing on further proceedings, I am not saying in the bail application, but on further proceedings in the trial," said magistrate Deliza Smith.

"The State is granted time to place this in front of the court... The matter is postponed to the 16th of March for further application. In custody," Smith said, postponing the case.

Tears rolled down the cheeks of Mbatha, who was dressed in black, when he made his way back to the holding cells.

His lawyer Kenneth Manyage argued on Tuesday that the State was not ready to proceed with the bail application.

"No identity parade was ever done.... The State is not ready to proceed. I am inclined to make the suggestion that when the investigation officer took the stand yesterday, [Monday] they were not aware of why the State is opposing bail," Manyage said.

"One has to regard the evidence, but there is just one impediment, if I can call it that, that is the alleged mental instability of the applicant and it is not sustained in any way... They [the State] ought to have obtained a statement under oath from the alleged officer."

Manyage argued that an accused had the right to a speedy trial and that a bail application should be dealt with urgently.

However, prosecutor Samuel Kampfer said he was not aware of the allegations when Mbatha first appeared in court.

"We only found out about this on the 22nd of February... It is our duty that all relevant information be presented to court, " he said.

During Monday's proceedings, the State prosecutor questioned ICD senior investigator Leon Naidoo, who was called to the scene of the shooting.

When asked if he thought there was a risk that Mbatha would take his own life if granted bail, Naidoo replied: "Yes."

Questioned by the defence, Naidoo said he had heard about Mbatha's "suicidal tendencies" from his supervisors.

"There were talks of two [suicide attempts], but no one is willing to give statements... I went through his personal files, but it was not noted."

Naidoo testified that the designated firearms officer at the Dobsonville police station earlier told him that Mbatha was unstable and was not allowed to carry a firearm. He said the firearms officer kept Mbatha in the office.

On the night of the crime, the commander on duty overruled the firearms officer by allowing Mbatha to go out.

In Mbatha's affidavit, read by Manyage on Monday, he said Mokoka was shot while he was conducting a body search.

"I conducted a body search on him [the teenager] and it was at that time that he was fatally shot."

He did not elaborate on how the shooting came about, but denied that he "unlawfully and intentionally killed the deceased".

About the run-up to shooting, Mbatha said: "Before entering the yard, we [police officers on duty] put our firearms on full automatic mode because it was our understanding that he was armed."

Mokoka was brought outside and ordered to lie on the ground before the body search was done, Mbatha said.

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