Publications
- The Nelspruit Magistrate's Court has dismissed an application to have the charge sheet amended.
- Two of the three men accused of killing Hillary Gardee claimed their charge sheet was not transparent.
- The men wanted the charges to specify where and when the murder occurred.
A Nelspruit magistrate on Tuesday dismissed an application by a defence lawyer in the Hillary Gardee murder case to have charges clearly stated against his two clients.
Representing Albert Gama and Philemon Lukhele, advocate Nqobizitha Mlilo challenged the dates and wording on the charge sheet.
Mlilo told the Nelspruit Magistrate's Court on Tuesday that the charge sheet was unclear and confusing.
He asked the magistrate, Patrick Morris, to order the State to amend the charge sheet before he could continue with the bail application brought by the two men.
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"I want to establish whether the accused conspired to commit murder and if [the murder] happened between 22 to 29 April. The [constitutional] rights of the accused are essential.
"Whatever happens here would be relevant during their trial. We need to know what the State is saying. You can't say 'on or about and between' [on a charge sheet]. That is contradictory. We need to understand what the State is saying before we lead witnesses. We need to be clear what the State is saying. What is the theory of the State?" Mlilo asked.
He said Lukhele and Gama were facing serious charges and argued that they had a constitutional right to a fair trial and the State "must tell us what they did".
"We are aware of the onus on us. [Why] is it difficult for the State to tell us what my clients did? The court is hearing this bail application in a vacuum. We are persistent with a right to a fair trial for the accused. The court must deliver a judgment on the issues I have raised," he said.
Argument
Prosecutor advocate Ntsika Mpolweni argued that the court should dismiss Mlilo's application.
"I don't know whether the confusion is the wording of 'between' or (the wording) 'on or about'. We should look at what the court is seized with. I don't know where the confusion is. The charge sheet is transparent.
"Whether they want to confine themselves to the dates, it's their business. I can't be of assistance to them to prepare for their bail. All we have is a bail application of the accused to prove exceptional circumstances that they must be released on bail," Mpolweni said.
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The magistrate dismissed Mlilo's application.
"I have previously asked the defence if they are ready to continue with the bail application, and they said they are ready. The charges are clear. The court rules that the accused continue with their bail application," said Morris.
Lukhele, Gama and Sipho Mkhatshwa are accused of kidnapping, raping and killing Hillary in April.
Mkhatshwa has since been denied bail
The hearing continues.
