“Yoh!”
A collective murmur of indignation rippled through the public gallery in the Vryheid District Court at the audacity of 50- year old Fanie Archibold Ndimande, who stated that the previous case he faced was, “…more serious than this one.”
Ndimande is charged with the murder of Dawie Badenhorst, who was shot dead during a home invasion on March 3 while fighting bravely to protect his family from three armed intruders. He faces two additional charges of robbery with aggravating circumstances relating to cellphones that were stolen at gunpoint during the home invasion.
The public gallery was packed to capacity with Badenhorst’s friends and family during Ndimande’s bail application on Wednesday, July 26. They are keen to see justice prevail after the Vryheid father of two was torn from his family way too soon.
To them, this case is very serious. Their presence in the court room is a clear indication that releasing Ndimande on bail will disturb the public peace, according to state prosecutor, Mr TP Khoza.
In support of his bail application, Ndimande opted to submit an affidavit which was prepared with the assistance of his legal aid attorney, Bongani Kunene. Ndimande also agreed to avail himself for cross-examination by Khoza.
Ndimande is a scrawny man of average height. His head is clean shaven but his chin is covered in grey stubble. He is dressed in a brown jacket with black cuffs and collar over a plain white t-shirt, and ripped jeans.
Ndimande’s gaze is downcast throughout the bail application, even when responding to questions. He is soft-spoken, his brow furrowed as he listens carefully before answering …Or, as is often the case, conveying his decision to rather remain silent.
Reading Ndimande’s affidavit into the record, Kunene informs the court that Ndimande is a self-employed perfume and cosmetics merchant, residing in Midrand.
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 step-children.
In his affidavit, Ndimande states that he is healthy, has no previous convictions or pending charges, nor are there any protection orders granted against him, and he intends on pleading ‘not guilty’ during trial. He has R3 000 available for bail and there is someone who can assist him with additional funds if need be.
Ndimande gave his assurance that, should he be released on bail, he will attend every court appearance, and he 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. This, toegther with the fact that Ndimande has strong emotional, economic, financial and community ties to the area, makes it unlikely that he will attempt to flee if he is granted bail, according to Kunene.
“Your evading trial does not require for you have a passport. Many other accused are doing it without a passport. You are facing these serious allegations. Not having a passport will not stop you from leaving the country and evading trial,” countered Khoza.
Ndimande presented two reasons to attempt to persuade the court to release him on bail. The first reason is 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.
According to Ndimande, the mother of the baby receives a child support grant, but this is insufficient for the baby’s needs. His daughter, who is studying at UJ, is funded by the National Student Financial Aid Scheme (NSFAS).
However, she has been informed that this is the final year she will receive NSFAS funding and Ndimande will have to pay for her to complete her final year of study next year.
Khoza later contested that the proceeds from the car wash could be used to support Ndimande’s children, especially his unemployed son, seeing as he already resides with Ndimande’s brothers.
The second reason Ndimande provides the court to justify his release on bail is 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.
“My trial was at the Johannesburg High Court and I was aware of the possible sentence that that court could give. There were eye-witnesses, there was an identity parade, there was even video footage. I attended without failure until the matter was finalised. I will attend to 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 Ndimande stated he has no previous convictions, when records obtained from the SAPS data base proved otherwise.
On November 4, 2002, Ndimande was arrested for drunken driving in Pretoria North, found guilty and sentenced to four years direct imprisonment. Ndimande acknowledged the previous conviction but denied doing jail time.
He told the court that he was sentenced to a fine and didn’t 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’.
“I attended that case in Pretoria North. The conclusion thereof was a fine. I paid the fine so I never thought it would count as a previous matter,” stated Ndimande, in response to Khoza accusing him of deliberately misleading the court.
Khoza went on to remind Ndimande that he was further convicted for 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, which are available online, confirm that the matter was heard by the Supreme Court of Appeal on August 22, 2019, and judgement was delivered on September 30, 2019.
A summary of the facts of the case reads as follows, “On August 3, 2003, at 10pm, at Amabele Spar, Ivory Park, Johannesburg, a gang on armed men wearing balaclavas attempted to rob the Spar store. The gang accosted two staff members and a security guard while they proceeded to close the store. A scuffle ensued. Eventually the security guard was dispossessed of his firearm and was fatally shot. The two staff members managed to flee from the store and sought assistance from other security guards who were outside the store. The entire incident was recorded on video cameras located inside the store. The state alleged that the appellant (Ndimande) was part of the assailants.”
In this case, 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 with regards to this case were set aside.
Returning to facts of the Badenhorst matter, 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.
“The manner in which you were arrested tells me that you were evading this trial. You had to be tracked down with the assistance of informers and TRT (Tactical Response Team). You were found outside this province and your co-accused in this matter is still at large up until this stage. Should you be released on bail in this matter you will evade this trial just like your co-accused did. He is nowhere to be found and now, and is said to be in another country, Mozambique,” said Khoza.
Ndimande denied that he had fled to Johannesburg, saying that he resides there and police arrested him at his home.
Khoza went on to state 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.
“You were not there because you already fled to Johannesburg, but police recovered many items that were allegedly reported stolen from other crime scenes,” said Khoza, to which Ndimande declined to respond.
Khoza proceeded to present the facts of the case to Ndimande, stating why the state was opposed to bail being granted.
“The deceased was inside his homestead when you and your co-accused, one is still at large and one is deceased, entered the homestead, and demanded items from the victims. At the time of this offence, you and your co-accused were carrying firearms. When you first entered that homestead you threatened witnesses with these firearms and demanded cellphones which were handed to you. In the commission of this offence, violence was used and firearms were used,” said Khoza.
“Should you be released on bail you know the homestead where this incident took place. Your release on bail is a threat to witnesses who reside in this homestead because you know them. When the deceased in this matter resisted with his items you shot him more than once therefore having intention to kill him. The witnesses, which will be led by the state, saw you and they went into hiding when you pointed them with a firearm and you proceeded, after taking their items, to enter the house. That’s where you shot deceased. Cellphone records place you on the scene in this matter. There is video footage this case will be relying on during trial. Alongside the witness statements of those witness who will testify, there is a prima facie case that you will have to answer to when the matter goes to trial. The level of violence you and your accused used on the deceased makes you a great danger to society and the people sitting in this court.”
“As I have said I have a very good record when it comes to adhering to bail conditions. So I do not think I would ever interfere with the witnesses,” responded Ndimande.
At this stage in the court proceedings, it was decided that the bail application would continue on August 16 due to time constraints.
The news provided to you in this link has been investigated and compiled by the editorial staff of the Newcastle Advertiser, a sold newspaper distributed in the Newcastle area. Please follow us on Youtube and feel free to like, comment, and subscribe. For more local news, visit our webpage, follow us on Facebook and Twitter, and request an add on our WhatsApp (082 874 5550).
