Former police officers Nomia Rosemary Ndlovu and Nomsa Mudau have been refused leave to appeal their convictions and sentences for incitement to commit murder.

The two appeared before the Kempton Park Regional Court on Thursday, November 12, where Magistrate dismissed their applications following arguments from the defence and State.

On May 20, both accused were found not guilty on the main count but convicted on the alternative count of incitement to commit murder.

On October 14, they were each sentenced to 10 years’ direct imprisonment in connection with an alleged plot to murder Mudau’s then-husband, Justice Mudau.

Ndlovu’s sentence will run concurrently with the sentences she is already serving.

Defence challenges convictions

During the application, defence attorney Malotana argued that the court had failed to properly consider material contradictions in the state’s case and had not adequately analysed the evidence presented by its witnesses.

Also read: Rosemary Ndlovu, Nomsa Mudau sentenced to 10 years in prison

He submitted that the court had erred in finding that the state had proved the accused’s guilt beyond reasonable doubt and in rejecting their versions as not possibly true.

The defence maintained that there were reasonable prospects of success on appeal and that another court could reach a different conclusion after considering the evidence.

In challenging the conviction for incitement, Malotana referred to the legal test established in S v Kosiyana 1966 (4) SA 655 (A).

The test considers whether an accused person sought to influence another person’s mind towards committing a crime, with the intention of arousing in that person the desire to commit the offence and put the criminal plan into action.

He argued that the evidence of state witness Lakhiwe Mkhize did not satisfy this test in respect of Ndlovu.

Mkhize testified that Ndlovu had told him that he would receive a call from Mudau, who needed assistance. He further testified that he never had another discussion or conversation with Ndlovu after that call.

Also read: Rosemary Ndlovu back in court as murder conspiracy case nears conclusion

Malotana argued that the court had misdirected itself by finding that Ndlovu played a connecting role in the alleged plot, without properly considering the evidence surrounding her involvement.

The defence also pointed to what it described as mutually destructive versions given by state witnesses Mkhize and Mtshali regarding their meetings with Mudau.

According to Malotana, the witnesses contradicted each other about whether they met Mudau together or separately, where the meetings took place, what Mudau was wearing and whether they received money from her.

Mkhize testified that he met Mudau alone before they moved towards Enhlanzeni hostel, where he later invited Mtshali to join them.

Mtshali, however, testified that he accompanied Mkhize when they met Mudau at Zniko, where she was inside a white Nissan bakkie. He said they got into the vehicle and were given R400.

Mkhize disputed receiving this money and testified that he subsequently went to Mudau’s residence, where he was given R3 000.

The defence also highlighted differences in the witnesses’ accounts of this subsequent meeting and how Njabulo Vincent Kunene became involved in the matter.

Malotana further argued that the court had erred in accepting the evidence of Mtshali and Kunene regarding an alleged second meeting with Mudau on February 23, 2018.

Both witnesses placed Mudau at the meeting on that date and recalled her wearing her police uniform and preparing to go to work.

However, Mudau produced a work roster that the defence argued contradicted their version. Malotana submitted that the state had not disputed this alibi evidence.

Also read: Rosemary Ndlovu case heads for closing arguments on April 1

He referred to S v Musiker (272/12) ZASCA 198; 2013 (1) SACR 517 (SCA), arguing that an alibi must be accepted unless the State proves it to be false beyond reasonable doubt.

The defence also challenged the 10-year prison sentences, arguing that they were shockingly inappropriate and that the court had failed to properly consider the circumstances of the offence.

State opposes appeal

The state opposed the applications for leave to appeal against both conviction and sentence.

In respect of Ndlovu, the state argued that Mkhize’s evidence was that she had contacted him and asked him to kill Mudau’s husband.

It further submitted that Ndlovu had introduced Mudau to Mkhize, thereby facilitating the subsequent communication and arrangements relating to the alleged murder plot.

The state argued that Mkhize’s evidence about the telephone call had not been challenged under oath, as Ndlovu had elected not to testify.

Regarding the contradictions highlighted by the defence, the state maintained that these were minor discrepancies that did not undermine the witnesses’ credibility or the reliability of their evidence.

In Mudau’s case, the state argued that her version had correctly been rejected by the court.

It questioned why Mudau, a police officer who was armed at the time, had allegedly met an unknown individual who offered to kill her husband without reporting the incident or opening a case.

The state submitted that her version only emerged during her testimony and was inconsistent with the conduct one would reasonably have expected from a police officer faced with such a threat.

Also read: Former cop denies murder plot linked to Rosemary Ndlovu case

It further argued that, when the totality of the evidence was considered, there was no reasonable prospect that another court would reach a different conclusion.

The state also opposed the appeal against sentence, arguing that the cases relied upon by the defence involved materially different circumstances.

Court dismisses applications

In delivering judgment, the Magistrate emphasised that leave to appeal is not granted merely because an accused person wishes to challenge a conviction or sentence. There must be reasonable prospects of success on appeal.

Regarding Ndlovu, the court found that no evidence had been presented to contradict the state’s case that she had set the chain of events in motion by giving Mudau Mkhize’s telephone number.

The Magistrate noted that questions put to witnesses during cross-examination did not constitute evidence and that the state’s version therefore remained unchallenged.

In respect of Mudau, the court found that her version had been raised late and contained internal contradictions.

The court further found that the contradictions in the state witnesses’ evidence highlighted by the defence were minor and did not affect their credibility or the central issues in the case.

On sentence, the Magistrate ruled that the 10 years’ direct imprisonment imposed on each accused was neither shockingly inappropriate nor disproportionate, considering the seriousness of incitement to commit murder.

The court consequently found that there were no reasonable prospects of success on appeal against either the convictions or sentences.

Both applications for leave to appeal were dismissed.