The man accused of murdering Dawie Badenhorst during a home invasion in Vryheid on March 3 while he fighting to protect his family from three attackers, motivated his bail application by saying he has been granted bail in a much more serious case than the one he is currently accused of.

Fanie Archibold Ndimande (50) is facing charges of murder and robbery with aggravating circumstances in the Vryheid Magistrate’s Court.

His utterances caused a murmur to ripple through a packed public gallery where Badenhorst’s friends and family gathered to witness the bail application.

The state prosecutor, TP Khoza, argued that the people in the gallery is a clear indication that Ndimande’s release on bail will disturb public peace.

Ndimande’s affidavit in support of bail was read into the record by his legal counsel, Bongani Kunene. He also agreed to avail himself for cross-examination by Khoza.

Ndimande is a scrawny man of average height who was dressed in a brown jacket with black cuffs and collar over a plain white t-shirt, and ripped jeans. His head was clean-shaven, but his chin was covered in grey stubble.

Ndimande’s gaze was downcast throughout the court proceedings, even when responding to questions. He is soft-spoken, his brow furrowed as he listened carefully before answering … Or, as was often the case, conveyed his decision to rather remain silent.

According to his affidavit, Ndimande is a self-employed perfume and cosmetics merchant residing in Midrand, Gauteng. He sometimes resides with his brothers, who co-run a car wash, and his unemployed 25-year-old son. At other times, he resides with his fiancé and his three stepchildren in KZN.

He stated that he is healthy and has no previous convictions or pending charges, nor any protection orders. He intends to plead ‘not guilty’ during the trial.

Ndimande said he had R3 000 available for bail and someone who can assist him with additional funds if need be.

He gave his assurance that should he be released on bail, he will attend every court appearance, and will not attempt to evade his trial. He does not possess a passport, nor does he have any family members who reside outside the borders of South Africa.

“Your evading trial does not require you to have a passport. Many other accused are doing it without passports. You are facing these serious allegations. Not having a passport will not stop you from leaving the country and evading trial,” countered Khoza.

Ndimande said that he is the sole provider for his three biological children, including his 25-year-old son, who is unemployed, his 21-year-old daughter who is currently studying at the University of Johannesburg (UJ) and his 15-month-old baby boy.

Ndimande told the court that he has an ‘exemplary and exceptional history’ as a person who has had to stand trial for an even more serious offence in the recent past.

In 2004, Ndimande was arrested and charged with murder, robbery with aggravating circumstances, attempted robbery with aggravating circumstances, unlawful possession of a firearm, unlawful possession of ammunition and three counts of attempted murder for an incident that occurred in Johannesburg.

In his affidavit, Ndimande states that he was released on R10 000 bail and the condition that he should report twice a week at the Ivory Park police station.

“There were eye-witnesses, there was an identity parade, there was even video footage. I attended without failure until the matter was finalised. I attend this matter to finality too. Nothing from my past conduct suggests otherwise,” stated Ndimande.

“My volition to stand trial is present to an exceptional degree.”

During cross-examination, Khoza attacked the credibility of Ndimande’s affidavit, pointing out that he stated he has no previous convictions when records obtained from the SAPS database proved otherwise.

On November 4, 2002, Ndimande was arrested for drunken driving in Pretoria North, found guilty and sentenced to four years of direct imprisonment.

Ndimande acknowledged the previous conviction but denied doing jail time.He told the court that he was sentenced to a fine and did not think the case counted as a previous conviction which he needed to disclose to the court, seeing as he had paid the fine and considered the matter ‘gone for good’.

Khoza went on to remind Ndimande that he was further convicted of murder in the Johannesburg High Court on June 9, 2005 and sentenced to life in prison. Kunene explained, however, that this conviction was overturned on appeal and it was, therefore, unfair to his client to raise it again during the bail application.

Court records confirm that the matter was heard by the Supreme Court of Appeal on August 22, 2019 and the judgement was delivered on September 30, 2019.

The matter relates to an armed robbery attempt at Amabele SPAR in Ivory Park, Johannesburg. Staff were held at gunpoint and a security guard was fatally shot. The entire incident was recorded on video on cameras located in the store.

During the appeal, the supreme court found that Ndimande’s constitutional rights were infringed in that he was detained without being informed of his rights, admissions were elicited from him without warning him of the consequences of making such admissions, he was assaulted by police to compel him to participate in a pointing out, and his right to remain silent was ignored and the pointing out proceeded in total disregard to his election to rather make a statement in court.

As a result of this, the conviction and sentence were set aside.

Khoza accused Ndimande of attempting to flee from the law, pointing out that Ndimande was only arrested on June 18 for a crime that was committed more than three months prior, on March 3.

He said that police could not find Ndimande at his Vryheid home, which he shares with his girlfriend, because he fled Vryheid shortly after the crime was committed. Ndimande denied that he had fled to Johannesburg, saying that he resides there, and police arrested him at his home.

Khoza told the court that Ndimande’s release will be a treat to state witnesses, as he knows who they are and where they stay because he was there at the night of the robbery.

Court proceedings was postponed to August 16 due to time constraints.