- The Piet Retief Magistrate's Court will hand down judgment on Tuesday.
- The Defence argued injuries described in postmortem report were not "serious", but Magistrate Dumisani Nxumalo said that would be dealt in the trial court.
- The Defence was against the State that the accused faced a schedule 6 offence.
The Piet Retief Magistrate's Court in eMkhondo, Mpumalanga has ruled that the State has failed to prove that eight men accused of murder and attempted murder on Pampoenkraal farm, face a schedule 6 offence.
Magistrate Dumisani Nxumalo ruled on Friday that the men were instead facing a schedule 5 offence according to the Criminal Procedure Act.
With schedule 6 offences, the accused have to prove that exceptional circumstances exist which which permit their release on bail, whereas with schedule 5, the bar is lower in that they have to show it is in the interests of justice to be granted bail.
The State and Defence submitted their closing arguments in the bail hearing of Zenzele Yende, Werner Potgieter, Eliot Dlamini, Moses Dlamini, Cornelius Greyling, Sikhumbuzo Zikalala, Mzwakhe Dlamini and Nkosinathi Msibi.
In determining the schedule, the magistrate said was not enough evidence submitted to the court to prove there was pre-planning, common purpose or pre-planned of the alleged murder of Sifiso Joseph Thwala and Musa France Nene as well as the attempted murder of Christopher Sthembiso Thwala on 9 August 2020 at the farm.
The eight men face charges of murder, attempted murder, kidnapping and defeating the ends of justice.
It is the State's case that the accused allegedly assaulted with intention to "kill" the three men on 9 August 2020.
The court heard during the bail hearing that the accused assaulted the men after accusing them of stealing sheep from the farm.
But according to the State, Christopher, the only survivor of the alleged assault, said their vehicle had experienced issues on the road near the farm.
Investigating Officer Warrant Officer Vukile David Nhlapho heavily relied on Christopher's witness statement when he opposed bail in the court.
According to Christopher, they were beaten with a sjambok, fists, kicked and also choked.
They were forced to admit they were on the road intending to steal sheep, which he said was not the case.
The police officer testified that the witness said the accused allegedly beat them until they could no longer respond.
Senior State advocate Vuyo Mkhulise argued that the offence was schedule 6 because there was common purpose, as all the accused were placed at the scene.
He also submitted that the State did not have to prove pre-planning and that the court would have to weigh and decide on it.
He argued that the accused clearly intended to kill because they had arrested the victims after seeing their "suspicious vehicle" but did not immediately call the police.
The State also submitted that Yende, Potgieter and Greyling faced had a schedule 5 pending case, which they were out on bail for.
But Nxumalo said:
The magistrate emphasised that three accused were out on bail for a crime that occurred in April, saying it could not be a schedule 6 on the basis of their pending case because it was committed before they were released on bail on their other matter.
"Obviously, it’s clear before me that I am dealing with the unique situation whereby the incident of the matter before me happened before the matter on which the applicants were released on bail.
"Looking at all these factors, this court rules that it doesn’t have enough evidence which is sufficient for it to conclude that this bail fall under schedule 6 - either based on the issue of common purpose or premeditation or the issue of the pending case," the magistrate ruled.
The court heard that the police were called the following day, 10 August 2020, after it was realised that two of the victims had died.
According to the accused, the victims were apprehended and kept on the farm yard after two sheep were found in their boot. They were going to call the police on them in the morning.
Arguing against the State's schedule preposition, Defence Lawyer advocate Jaap Cilliers, SC, said the State "miserably" failed to prove that.
He said the state had not proved any common purpose or premeditated purposes in the alleged crime. Cilliers said:
The lawyer said the fact that the security guards had noticed a "suspicious vehicle", which gave rise to the situation, gave an impression there was no suggestion of prior planning.
"The guards saw a vehicle, rightly or wrongly, they regarded [it] as a suspicious vehicle, probably in the planning of stealing sheep – and they called their security chief, accused 1 (Yende)," the lawyer submitted.
The lawyer also argued that the injuries listed in the postmortem reports of the deceased victims were "clearly not indicative of any intention to kill the victims".
He added that the fact one victim remained alive also proved there was no intention to kill them.
Cilliers argued that the victims' injuries were not "serious" and that one of them had, according to a witness statement, fell on the ground and bumped his head, which meant that may have caused the injuries to the head as described in the report.
The lawyer said: "The injuries are clearly not that serious and not indicative of an assault and a purpose to kill the victims. From the above, it is clear there are material discrepancies between the two witnesses that Nhlapho relied on in summary of the State's case compared to the objective facts as we call it in the postmortem reports."
But Mkhulise dismissed the suggestion that the injuries were not "serious", saying the Doctor's findings, who was not even present at the crime scene, were consistent with the evidence given to the court.
The bail judgment will be handed down on Tuesday.