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Two different accounts by the State’s core witness, to some extent, exonerates some of the eight men accused of murder and attempted murder on Pampoenkraal Farm, defence lawyers told the Piet Retief Magistrate’s Court in eMkhondo, Mpumalanga, on Thursday.
A transcript from an SABC programme, Special Assignment, formed the basis of the defence’s cross-examination of investigating officer, Warrant Officer Vukile David Nhlapho.
Defence lawyer, advocate Jaap Cilliers, cross-examined the police officer in the bail hearing of Zenzele Yende, Werner Potgieter, Eliot Dlamini, Moses Dlamini, Cornelius Greyling, Sikhumbuzo Zikalala, Mzwakhe Dlamini and Nkosinathi Msibi.
The magistrate presiding is Dumisani Nxumalo. The eight face charges of murder, attempted murder, kidnapping and defeating the ends of justice. They are accused of murdering Sifiso Joseph Thwala and Musa France Nene on the farm on 9 August 2020.
News24 previously reported the two deceased men, along with Christopher Sthembiso Thwala, were allegedly assaulted by the accused after their car broke down near the farm. They had been accused of stealing sheep.
Christopher Thwala survived the alleged assault, but his brother, Sifiso, and a friend, Nene, were killed.
The transcript brought to the court was an interview Christopher did with the SABC, detailing his account of what happened on the day.
Cilliers put it to the court that the survivor’s account during the televised interview differed “materially” from a statement he gave the police, which Nhlapho heavily relied on when he testified to oppose bail for the accused men.
Cilliers quizzed Nhlapho on the transcript’s contents from the SABC interview, putting it to him that there were material differences.
“There can be no doubt that the incident being described here (in the transcript) is the incident that happened on 9 August 2020, near Pampoenkraal.
“And the only person in the whole world who could have said, ‘my brother, my friend and I, were in the car’ is Christopher Thwala because the other two persons have passed away, sadly,” Cilliers said as he cross-examined Nhlapho. Cilliers added:
“All I want to put to you, [a] general reference statement, the version here, specifically with reference to who was involved in the assault – differs materially from the summarised version. That’s what we will argue.”
The lawyer did not detail what exactly differed, saying he would go deeper during his closing arguments. Nhlapho did not have a comment on the defence’s view.
Cilliers also quizzed the officer about the ID parade of the accused. He disputed the police’s view that Potgieter and Greyling were not cooperative during the parade.
The defence lawyer said he was instructed that they were, but the police did not have other “sufficient white persons” to form part of the parade. They expected the then legal representative to bring other people for the parade.
Before the magistrate accepted the transcript for questioning, the prosecutor, Vuyo Mkhulise, submitted no legal basis for it to be used.
He questioned the transcript’s authenticity, saying there were no signatures, and it was not commissioned.
Cilliers countered by saying the core reason was because it exonerated “at least four of the accused”.
“Your worship, as far as relevance is concerned, with great respect to my learned friend, the submission relating to the effect that it was not done under oath, has nothing to do with relevance.
“The relevance in these proceedings is that the versions provided by Mr Thwala (Christopher), in person, on video, exonerates at least, and I emphasise, at least, four of the applicants before your worship, as not involved at all in the alleged assaults,” Cilliers told the court.
He said it was for that reason it was important the court received the material. Nxumalo said, although he welcomed the concerns of the transcript’s relevance and authenticity, he was not too worried about it at this stage.
“With that said, and with all the concerns that I acknowledged the State has raised, I will welcome those concerns again in the form of an argument at a later stage, about the value of such a transcript,” Nxumalo said.
The magistrate added that he would pronounce during his bail judgment whether the transcript was of any value towards the collective evidence handed to the court.
The court expects to hear closing arguments on Friday.
Judgment is expected to be delivered next week.
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