‘Wrong person before court’ – Defence says ‘new facts’ warrants bail for Kirsten Kluyts’ alleged killer

The lawyer representing the 21-year-old man accused of murdering Johannesburg school teacher Kirsten Kluyts has argued for his client to be granted bail.

The suspect returned to the dock in the Alexandra Magistrate’s Court on Wednesday for his third attempt to be released on bail.

The accused is facing a string of charges, which were amended in the charge sheet by the state last month, including kidnapping, robbery with aggravating circumstances, murder, attempted rape and defeating the ends of justice.

He was denied bail in December 2023, while his leave to appeal application was dismissed on 25 June this year.

‘Accused entitled to be released on bail’

While the state has already expressed readiness to proceed to trial in the Gauteng High Court in Johannesburg, the defence had a different view.

His legal representative, Advocate Itumeleng Masako, argued on Wednesday that after reviewing the case docket, video footage evidence and the indictment, the defence discovered “new facts”, prompting their latest bail application.

Mosako told the court that the accused, who cannot be named until he pleads, was entitled to be released on bail despite the addition of new charges.

ALSO READ: Autopsy report suggests Kirsten Kluyts was not raped, had ‘no genital injuries’

“If the court finds that ‘yes, there are new facts’, then are they relevant for purposes of bail?

“And if they are so, then the court has to determine the fundamental question as to whether the accused did adduce evidence to satisfy the court that he is entitled to be released on bail by showing exceptional circumstances,” the lawyer said.

He highlighted that the new indictment has “changed the colour, shape and size of the charges” and is “sufficiently different in character from what we dealt with in the first bail”.

According to the advocate, this “constitutes a new fact”.

‘Contamination’

Mosako further revealed the details of his client’s affidavit.

“On the 9th of June 2024, an investigating officer with other SAPS [South African Police Service] members came to Sun City Prison [in Johannesburg], where I am incarcerated.

“They called me and made me wear the clothes on the 29th of [October] 2023 and took me pictures. My legal representatives were not aware, and no permission was sought from them.

“That on its own constitutes a new fact, and it is contamination also because in so doing, that amounts to torture.

“In so doing, it means keeping the accused in prison is a benefit for the SAPS to do as they wish at any given time.”

‘Wrong accused before court’

Meanwhile, Mosako stated that at the time the accused’s bail was denied, the defence did not possess the docket, evidence, or indictment.

“Therefore, upon receiving them as new facts then we proceeded. It was after the refusal of bail and that on its own created changed circumstances.”

The advocate, in conclusion, argued that a case on new facts has been made.

“Secondly that this application was not brought to primarily abuse the process. It was brought on genuine grounds.”

He added that the defence has demonstrated that “the accused is the wrong person before this honourable court” on all charges except the count of defeating the ends of justice.

READ MORE: Kirsten Kluyts killed within 8 minutes of arriving at Sandton park, court hears

The case has been postponed to 20 August.

The accused previously admitted in court that he had taken Kluyts’ clothes on the day she died but denied killing or raping her.

He was identified on CCTV footage as leaving the scene and walking home wearing Kluyts’ blue sports T-shirt and pink cap.

Kluyts was killed on 29 October 2023, during an organised fitness event at George Lea Park in Parkmore, Sandton.

The 34-year-old was a teacher at Delta Park High School and was 14 weeks pregnant at the time of the murder.