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

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Eight men accused of murder and attempted murder on Pampoenkraal farm appear in the Piet Retief Magistrate's Court.
Eight men accused of murder and attempted murder on Pampoenkraal farm appear in the Piet Retief Magistrate's Court.
PHOTO: Isabel Venter
  • Defence lawyers have applied for disclosure of the docket, witness statements, and post-mortem reports, saying non-disclosure prejudiced the accused.
  • The State was against the disclosure, disputing there was any prejudice, as the matter was only at bail application stage.
  • The defence said there were discrepancies in the evidence given by the investigating officer.

The Piet Retief Magistrate’s Court on Thursday dismissed an application for access to a police docket by defence lawyers representing eight men accused of murder and attempted murder on Pampoenkraal farm.

The lawyers representing Zenzele Yende, Werner Potgieter, Eliot Dlamini, Moses Dlamini, Cornelius Greyling, Sikhumbuzo Zikalala, Mzwakhe Dlamini and Nkosinathi Msibi made the application before Magistrate Dumisani Nxumalo.

The eight men were applying for bail in the court.

They face charges of murder, attempted murder, kidnapping and defeating the ends of justice.

The eight are accused of murdering Sifiso Thwala and Musa Nene. They are also accused of assaulting Christopher Thwala.

News24 previously reported that it was alleged that three men – Christopher Sthembiso Thwala, Sifiso Joseph Thwala and Musa France Nene – were assaulted on Pampoenkraal farm, near Dirkiesdorp, on 9 August 2020.

WRAP | 'Beatings, stock theft, taking the fall' - Inside the Pampoenkraal farm killings bail hearing

Sifiso and Nene died, while Christopher survived.

Defence advocate Jaap Cilliers SC, who applied on behalf of the accused, said the non-disclosure would prejudice them.

The lawyer applied for the disclosure of the docket, the witness statements, and post-mortem reports of the two deceased victims.

But State prosecutor Vuyo Mkhulise said the docket's disclosure would prejudice them too.

He also argued that disclosing witness statements would reveal sensitive information, such as their addresses and telephone details.

He said the witnesses had already fled the area for their safety.

'Intimate' information

Among the State's witnesses are "Section 204" witnesses.

Section 204 of the Criminal Procedure Act allows for an alleged accomplice or accessory to a crime to testify frankly and honestly as a State witness, and possibly be granted indemnity from prosecution as a result.

Delivering his ruling on the matter, Magistrate Dumisani Nxumalo said he did not believe the disclosure of the statements would benefit the case during bail stages.

"And the statements contain information that is intimate at this stage, which the State is allowed to protect. As for Section 204 statements, that's very sensitive information.

"Sometimes, even when the indictment is prepared and the list of witnesses are given, the information about the identity of Section 204 witnesses are normally not disclosed," Nxumalo ruled.

He added: 

The prejudice weigh[s] heavily against the State if the court had to order the compelling of the disclosure of such statements at this stage, and therefore the court rules that it's not in the interest of justice for the court to compel the State to disclose such statements.

Post-mortem

The men were reportedly driving in a red Toyota Corolla between Dirkiesdorp and Driefontein and were accused of stealing sheep, according to the police.

Applying for bail last week, the accused denied the charges they were facing. They also denied that they faced a Schedule 6 offence.

Opposing bail, the State led the evidence of the investigating officer, Warrant Officer Vukile David Nhlapho, who relied on witness statements, which detailed the alleged assault on the three men.

He also read out the report which stated that the accused's bruises seemed like those associated with mob justice.

But the State believed that disclosing the report to the defence was unnecessary because the question of whether the victims were deceased or not was not in dispute.

He said the accused had also agreed in their affidavits that the victims were deceased.

Mkhulise added: 

I will submit that, your worship, taking into account the applicants have already submitted their affidavits, they had an opportunity to apply for the disclosure of the docket.

One of the State's witnesses, the only survivor, Christopher, said the accused allegedly assaulted them until they could no longer respond.

The witness also alleged they were beaten with fists, a sjambok, and were also choked.

The officer also relied on the statement of another witness, who he said was a security guard at the farm and was present during the alleged assaults.

Making a ruling on the application, the magistrate instead allowed the defence to view the report in the presence of the prosecution.

Before he could start with his cross-examination last week, Cilliers said he believed there were inconsistencies and discrepancies in the witness statements Nhlapho used in his evidence.

The lawyer charged that the statements the officer relied on differed "materially".

The bail hearing continues.

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