UPDATE: Bail hearing in Mbense case postponed again

Julius Mkhwanazi and his five co-accused appeared in the Brakpan Magistrate’s Court on September 3 and 4 to conclude the cross-examination of investigating officer Nomsa Masuku, and begin the delivering of final arguments in favour of bail for the six.

On September 3, Advocate Peter Wilkins questioned Masuku rigorously, frequently expressing frustration with her answers which he described as evasive, refusing to answer his questions and diverting from the matter at hand.

He questioned Masuku’s description of the assault, highlighting that, to his knowledge, none of the statements submitted describes the assault in such detail.

Masuku challenged him on this, saying that he only reads lines of statements that benefit his arguments, to which he responded that she provides a lot of irrelevant information and “rambles on” without answering the question.

He claimed that nowhere in the statements made by Marius van der Merwe does it say how the assault progressed.

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Masuku said to this: “That part of my statement is the summary of my investigation, not only Marius’ statement. I drafted my bail opposition statement based on the whole docket.”

Wilkins further questioned the credibility of both van der Merwe’s statement and that of Etienne van der Walt, referring to Masuku’s own testimony at the Madlanga Commission where she called Marius an unreliable witness, as well as the fact that van der Walt did not come forward voluntarily to testify.

Wilkins also questioned a part of Masuku’s statement that refers to Matiphandile Sotheni’s bail application affidavit, asking her if she holds that section to be true. Sotheni is accused of the murder of van der Merwe.

Wilkins then alluded that if Masuku did hold that section of Sotheni’s affidavit to be true, she inadvertently holds the entire statement to be true, making Sotheni innocent in her eyes.

She responded that she is not the investigating officer on the Sotheni matter, and will not comment on it. After the cross-examination on behalf of Juan-Marie Eksteen, which concluded the cross-examination, final arguments in favour of bail proceeded on September 4.

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Wilkins delivered his arguments for Mkhwanazi first, stating that he could not be held to a Schedule Six offence by common purpose, as he was not present for any meetings before or after the murder of Mbense in which it could have been planned to torture and rob Mbense.

He said that deciding to dispose of the body after the fact is not equal to murder in itself, that Mkhwanazi is not a flight risk or a risk to the safety of other accused or witnesses, and claims that he arrived on the scene, saw that SAPS members were there, and left.

Advocate Marius van Wyngaard on behalf of Cobus Janse van Rensburg said in his arguments that Janse van Rensburg was not an accessory, that he did not attend any of the meetings related to the incident, and that he left the scene before it was made known that Mbense had died.

He claimed that his client was not in any way involved in the murder, alleged robbery or the disposal of the body afterwards.

Before Jan van Heerden could proceed with his final arguments on behalf of Bhekokwakhe Sibande, he asked whether the court would reconvene after lunch, which was set to take place at 13:00, and was told no. As such, the bail application was postponed to September 8, with all accused remaining in custody until then.