Case postponed for judgement

MBOMBELA – Court cases against Justin Fanyana Malambe (40) and his nephew, Wonder Sibusiso Phelembe (27) both from Dwaleni Trust were postponed to Tuesday (October 22) for judgement.

Charges of murder, robbery with aggravating circumstances and rape of Nonkululeko Thandi Khoza who was found naked and dead in her house on 21 May 2010 were initially laid between the two. Post-mortem results revealed that the victim died of chest and head injuries.

Evidence brought in court states that Phelembe’s semen’s were found in the deceased’s body during forensic tests and that is how he was arrested. While his co-accused was arrested after a hammer which is believed to have DNA tests of the deceased, was found in his house.

It was also heard in court that the deceased’s cellphone was handed to the deceased’s family by Phelembe. His lawyers argued in court for his release because the two were allegedly lovers.

“I don’t know why the accused should be charged with rape because the deceased was his girlfriend. The state did not succeed in proving that the offence was rape. There is also no evidence so far that said the cellphone was forcefully removed from the victim,” argued his legal representative, Mr Pelton Mnisi.

“It is my humble submission that there is no evidence for the state to convict the accused on all charges,” he continued.

Malambe’s legal representative also argued for his release because he is not in any way linked to the rape case and robbery cases.

“He only got connected to the matter because police thought the hammer had blood stains of the deceased yet forensic tests said the deceased’s sweat was found on the hammer which was found in Malambe’s premises.

“It is my humble submission that there is no evidence for the state to convict the accused on all charges,” he said.

After the arguments, the State’s Advocate Kenneth Mashile submitted that there was no evidence linking Malambe to the charge of rape. He also refutes the claims of a sexual relationship between the deceased and Phelembe.

On October 17 the presiding judge in the matter, Justice Daisy Molefe said she was satisfied that there is no evidence linking Malambe to the rape charge “ A discharge is given to him,”

The judge rejects a discharge application on all charges levelled against Phelembe.

In his testimony, Phelembe said he was at home on the night of the murder and told the court that the deceased was his lover whom he met around April, proposed to her and had sex with her on the same day. When asked how he got possession of the deceased’s cellphone, he told the court that they exchanged cellphone since the deceased was using an out-dated one.

He also alleged to had have sex with her in his house on the night before she left to her house. When asked the age of the deceased he said he never asked her.

During cross examinations, Mashile showed Phelembe a photo of the deceased and said: “She looks old enough to be your mother, how could you have dated her,” said Mashile.

“The deceased’s sister testified in this court that she (deceased) was not involved with anyone if she did, she would have known. It was never put to the witness that you were lovers, for her to comment,” he said.

“She only says what she knew,” responded Phelembe.

“I put it to you that you are fabricating, you are cooking up a case to suit you. You design it to explain why your semens were found in her body and why her cellphone was found with you,” said Mashile.

“ I have given an explanation of what happened, how she was killed I don’t know,” said the accused. He also told the court that there was bad blood between himself and his co-accused.

“We had a fight before, she was not aware of the relationship with the deceased,”.

The matter was postponed for judgment on October 22.