Verdict on opposed bail application for former master of High Court imminent

MBOMBELA – Both the state advocate and the defence attorney presented their closing arguments on Friday, in front of magistrate Leonard Ngcangca.

The two accused were arrested on November 7 on charges of fraud, corruption and money laundering, which comes after defrauding beneficiaries of their estate inheritances, amounting to R1,7 million.

Masuku, a Malawian national, was also separately charged for contravening the Illegal Immigration Act. It is believed that she submitted false documents when applying for the position of Master of the High Court.

Kgosiemang is alleged to have transferred funds from the deceased estates into his business account for his personal financial enrichment.

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Their attorney, Dimakatso Mashego, argued that it is not the function of the court considering bail to make a provisional finding of guilt, but to access the prima facie strength of the state’s case.

“There should be a rational balancing of the applicant’s right to bail and the state’s right to investigate. There must be a lawful cause before detention for the purpose of investigation,” he said.

State Advocate Henry Nxumalo attacked the affidavits of the applicants on the basis that it lacks crucial information allowing the court to release the accused in the interest of justice.

Nxumalo used established case law to illustrate that submissions from the bar carries less weight than the submissions contained under oath in the affidavits. “Schedule five or six offences require you to say more, and the onus is on the applicants to adduce evidence and prove on a balance of probabilities that bail should be granted,” he maintained.

Mashego put it to the court that Masuku’s passport was taken away by the investigating officer and therefore she is not a high flight risk, as alleged in the state’s affidavit. “It is well known that she had been living in Mbombela since 2013. It is also common cause that she has been working for the Department of Justice (DoJ) since 2005. The fairness of the alleged termination of her services by the department can still be challenged,” he said.

In a statement on November 12, DoJ spokesman Chrispin Phiri said her dismissal came into effect on November 8, a day after being arrested by the Directorate for Priority Crime Investigation (Hawks) for allegedly stealing money from deceased estates.

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The defence portrayed Masuku as having strong emotional ties in South Africa, which is one of the essential elements that must be satisfied in order for bail to be granted. “Masuku has an uncle in South Africa and looks after the siblings of her late brother. She also inherited a house from her late father, which is situated in Marimba Gardens,” Mashego claimed.

“Kgosiemang handed himself over willingly to the police, which should count in his favour. His passport and all of his files were taken away, therefore the chances of him leaving the country or tampering with evidence while out on bail would be slim,” he said.

Nxumalo indicated that Masuku’s affidavit does not say that she inherited the house in Marimba Gardens, as it was mentioned by her attorney. “She never said that she is taking care of her late brother’s children; it is a mere allegation. No names or ages of children are indicated in the affidavits, and they want to argue strong ties in this country, but there is no evidence,” he argued.

It was further stated by the state advocate that her affidavit failed to deal with her nationality in her application for bail. “The accused is an illegal immigrant as we speak. If granted bail, the court will be sanctioning an illegal act and undermining the criminal justice system, as an illegal foreigner is unable to buy and rent property in the republic,” Nxumalo explained.

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The state argued strongly against bail for Kgosiemang. Nxumalo indicated, “According to his affidavit, his life started in 2013. It does not indicate where he stayed before he met accused one, if he had any siblings and if his parents are still alive. How can the court come to the conclusion that he has strong family ties in the republic if 29 years of his life is unaccounted for?”

In conclusion the state suggested that the case against Kgosiemang is overwhelming, hinting that it would be attractive for him to abscond from trial. Nxumalo said that the money paid out into his business account constitutes an act of theft and, “that the state has done more than enough to show bail should not be granted to the two accused.”

Both were remanded in custody.