Six men who were hoping to be let off the hook after they allegedly tortured a Port Elizabeth man to death in 2010, were dealt a blow in the Port Elizabeth High Court on Wednesday when their application for a stay of prosecution was dismissed.
The men had asked the court that the National Prosecuting Authority (NPA) not charge them again because they believe there was an unreasonable delay in the prosecution of the case. The men will now remain in custody as their trial runs for the second time round.
In his judgment on Wednesday, Judge Dayalin Chetty had found that the men were attempting to capitalise on the death of their initial trial judge, Bonisile Sandi, who died earlier this year. At the initial trial, both the defence and state had closed their cases, and the six men were waiting for Judge Sandi to deliver his verdict.
Chetty stated that the men were capitalising on the late judge’s demise to found an argument that the delay in the finalisation of their trial was unreasonable.
Chetty dismissed their complaint as a “baseless assumption that the judge was remiss in failing to hand down his judgment”.
He said that the nondelivery of judgment had to be assessed holistically, adding that the continuous postponement of the judgment was linked to the progressive debilitating illness of Judge Sandi.
“His demise negates any suggestion to the contrary and I am satisfied that the delay was not attributable to any wilfull default on the part of the learned judge,” Chetty’s judgment read.
Khangelani Matebe, Luyanda Nkolose, Mzuvukile Foli, Fuzile Kosana, Athenkosi Mtshayisa and Fundile Nqwensu have been in custody shortly after Floris Kruger’s murder in August 2010.
The men – allegedly armed with knives – broke into and ransacked Kruger’s home on a smallholding at St Albans before beating him throughout the night.
Kruger was brutally attacked and eventually died as a result of his injuries. He was discovered on a gravel road and had sustained knife wounds to his arms and back. Post mortem results indicated that the cause of his death was determined to be gunshot wounds to his head.
The six face charges of murder, kidnapping, housebreaking, robbery and unlawful possession of firearm and ammunition.
Court adjourned and the men refused to appear before their new trial judge, Irma Schoeman. They said they wanted to fire their lawyers and vowed not to appear before court again. After much fuss and resistance the men eventually appeared before Schoeman but vowed not to pitch for trial.
“There are mechanisms in the criminal procedure act that allow for a trial to proceed without the accused. However, it is to your advantage that you be present,” said Schoeman.
The case was postponed until October 10.