eMkhondo murders: State's reasons for denying bail are 'nonsensical, not valid', defence argues

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Eight men accused of the murder of Sifiso Thwala and Musa Nene on Pampoenkraal farm in August 2020 appear in court.
Eight men accused of the murder of Sifiso Thwala and Musa Nene on Pampoenkraal farm in August 2020 appear in court.
Kayleen Morgan
  • The Defence argues that the State's case is weak. 
  • But according to the State, releasing the suspects on bail would send shock waves in the community.
  • The bail judgment will be handed down on Tuesday.

An investigating officer's reasons to oppose the bail of eight men accused of murder and attempted murder on Pampoenkraal farm outside eMkhondo are "nonsensical", "not valid” and have no basis, the defence said in the Piet Retief Magistrate's Court in eMkhondo when it closed its case on Friday.

Senior Counsels Jaap Cilliers and Marius Van Zyl did not mince their words in their closing arguments as they for the last time submitted their clients' case before Magistrate Dumisani Nxumalo, pleading for their release on bail. 

The lawyers were representing Zenzele Yende, Werner Potgieter, Eliot Dlamini, Moses Dlamini, Cornelius Greyling, Sikhumbuzo Zikalala, Mzwakhe Dlamini and Nkosinathi Msibi in the court. 

The eight men are charged with murder, attempted murder, kidnapping, and defeating the ends of justice. 

They were accused of the 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. 

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 allegedly assaulted the men after accusing them of stealing sheep from the farm.

READ | eMkhondo murders: Court dismisses application by defence for disclosure of police docket

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.

But the defence lawyers rebuked the reasons for the denial. 

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 was not the case.

Cilliers, who led the closing arguments and also on behalf of his colleague Van Zyl, said Nhlapho made concessions that must have effect for the bail application to be granted. 

Among the concessions was that there were differences between the statements of the survivor as well as other witnesses, known as 204 witnesses, the lawyer said. 

He said while the police officer opposed bail, saying it was for the safety of the witnesses, he also conceded that all four state witnesses were in hiding and protected. 

One witness is in a safehouse while three others were in hiding, Nhlapho told the court.

Cilliers said the officer also confirmed that some of the men, Msibi and Potgieter included, had cooperated with the police investigation, which meant there was no way they would escape their trial and interfere with evidence and witnesses.  

He submitted: 

Of significance was his [Nhlapho] evidence at the end of the testimony that he did not dispute the allegations of all the accused in their affidavits, apart from the factual allegations relating to the incident itself. "We submit that these concessions are actually destroying the total case of the State in objecting to granting of bail to the Accused.

The lawyers said based on the concessions as well as the grounds given to oppose bail, it was clear that there was no basis for an argument to oppose it and that it was clearly in the interest of justice to release the accused. 

State's case

When asked why he opposed bail, Nhlapho said one would "never know what happens in the head of a suspect" when they were charged with a serious offence, suggesting they would change their behaviour once released. 

But according to the defence, that reasoning was "vague".

Arguing against the reasoning, Cilliers said: "If that is the criteria to be used in bail applications no person will ever be released on bail."

READ | eMkhondo murders: Court finds State does not have enough evidence to prove premeditation

Cilliers said there were also two conflicting statements made by the State witnesses - in one they implicate the accused, while in the others, they did not. 

He also criticised Christopher's statement given to the police, comparing it to an interview the witness had given during an interview with SABC's Special Assignment Programme.

According to the lawyer, there were "material differences" on those two accounts the witness gave.

Christopher was clear in the interview that there were four people involved in the assault - not eight or 11, Cilliers argued. 

"At the very least, unfortunately, he did not give us the particulars of whom it was - but as a very basic objective fact, on that version, four of the accused in front of you, are here incorrectly. And to deny eight people bail, whilst you know at least four of them are not guilty would really be a travesty of justice," he said. 

Cilliers added: 

The merits of the State's case is not as strong as they maybe think it is. And insofar as that is one of the aspects that you to consider, we submit, that you will have to find that the State's case is not as sound as one would have expected with so many witnesses.

But arguing the State’s Case, advocate Vuyo Mkhulise said the contradictions being noted were not as serious and did not mean the case was not strong.

The Prosecutor said taking into account the manner in which the accused were arrested and how some had failed to disclose their previous convictions too, he believed bail should be denied.

He said the accused's release would also shock the community, considering how the offences were committed.

Mkhulise said even if the court considered the sighted contradictions between the survivor's statement to the police and the SABC interview, they were only on the numbers of perpetrators involved. 

READ | eMkhondo murders: Defence disputes survivor's account of the assault

He said while the defence argued the survivor mentioned four people were involved in the alleged assault, he actually said "he saw four". 

The Prosecutor added that the survivor also mentioned Yende, and Greyling in the same interview, which the court needs to also look into. 

The lawyer argued that not all contradictions were material.

Mkhulise argued:

Now taking into account all the circumstances, that is; the manner in which the offence was committed, circumstances under which some of the accused were arrested, failure on part of the applicants to disclose their previous convictions, the fact that some of the accused have a pending case of murder, and the fact that two people died... "I will submit that the interest of justice do not permit their release on bail and will request the court to deny them bail.

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