State wit­ness kills mur­der trial

Diamond Fields Advertiser - - NEWS - BENIDA PHILLIPS STAFF RE­PORTER

THERE were scenes of ju­bi­la­tion and tears of happiness in the North­ern Cape High Court yes­ter­day when four mur­der ac­cused – Za­mani Mbatha, Sylvester Ephraim, Chris­telle van der Westhuizen and Tessa Mboth­ibi – were ac­quit­ted af­ter the only eye­wit­ness to the al­leged mur­der and ar­son was un­able to tes­tify due to post-trau­matic stress dis­or­der.

The court closed the case of the State against the ac­cused in terms of Sec­tion 342A 3D of the Crim­i­nal Pro­ce­dure Act.

The four were fac­ing charges of theft, mur­der and ar­son af­ter they al­legedly killed Xo­lile Ma­cala and then set his body alight on the night of April 30 and May 1 last year.

The trial has limped along at a slow pace and was re­peat­edly post­poned af­ter the eye­wit­ness con­tin­u­ously fainted or be­came ex­tremely emo­tional dur­ing her tes­ti­mony.

An ap­pli­ca­tion to close the case of the State was brought by the de­fence yes­ter­day af­ter the State re­quested a fur­ther six-month post­pone­ment to al­low the wit­ness to con­tinue her men­tal eval­u­a­tion.

A pre­vi­ous men­tal eval­u­a­tion of the wit­ness found that it would be risky for her to con­tinue to give ev­i­dence in the mat­ter.

A med­i­cal ex­pert from the West End Hospi­tal, who as­sessed the wit­ness, Dr Gape Moroe, told the court that the wit­ness showed signs of post-trau­matic stress dis­or­der (PTSD) when she was ad­mit­ted to hospi­tal on June 14 this year.

“The wit­ness showed signs of post-trau­matic stress dis­or­der and had signs of de­pres­sion. She also wanted to com­mit sui­cide at the time. The rea­son she ex­pe­ri­enced PTSD was be­cause she wit­nessed a stress­ful event,” Moroe tes­ti­fied.

He said, upon as­sess­ing the wit­ness, he found that the PTSD could be as a re­sult of her wit­ness­ing the al­leged in­ci­dent. An­swer­ing ques­tions about whether the wit­ness would be able to tes­tify at a fu­ture date, Moroe said there is no cer­tainty.

“The wit­ness is cur­rently on an­tide­pres­sant med­i­ca­tion. There has been an im­prove­ment in her con­di­tion since she started treat­ment, but she has not fully re­cov­ered yet. She will need treat­ment on a monthly ba­sis af­ter which she will need to be re­viewed. How­ever, if there is a high stress event, the wit­ness could re­lapse,” Moroe stated.

Judge Ce­cile Williams said that the wit­ness has an un­for­tu­nate his­tory of caus­ing the mat­ter to be post­poned for long pe­ri­ods of time. “On Novem­ber 13, 2016 the wit­ness burst into tears when she was cross-ex­am­ined. On De­cem­ber 1, 2016 the State in­di­cated that the wit­ness was still not okay and was taken from court by an am­bu­lance.

“Since the wit­ness was preg­nant at the time, it was sus­pected that it could be the ef­fects of the preg­nancy. The mat­ter was then post­poned to Jan­uary 31, 2017.

“On that day the court again heard that the wit­ness was not ready and the mat­ter was again post­poned to June 5 un­til June 15. On June 5, af­ter just one ques­tion posed to her by Mbatha’s at­tor­ney, the wit­ness again broke down,” Williams said.

She added that the court then made var­i­ous al­ter­na­tive ar­range­ments in an at­tempt to ac­com­mo­date the wit­ness.

“The State re­quested that the wit­ness should tes­tify via closed-cir­cuit tele­vi­sion. This was af­ter the wit­ness in­di­cated that she was afraid of the ac­cused. In sup­port of this, a so­cial worker also gave tes­ti­mony in court say­ing that the wit­ness was will­ing to give tes­ti­mony via closed-cir­cuit tele­vi­sion.

“I then had to keep in mind that the wit­ness was only two months away from her 18th birth­day and granted the re­quest. How­ever, on June 7, 2017, dur­ing cross-ex­am­i­na­tion by Mbatha’s lawyer, the wit­ness went into a fit. I was in­formed the next day that the wit­ness was re­ferred for psy­chi­atric eval­u­a­tion and on June 15 a re­port was re­leased re­gard­ing the con­di­tion of the wit­ness.”

Williams said that the pre­vi­ous eval­u­a­tion sup­ported the find­ings of Moroe.

“The doc­tor who ex­am­ined the wit­ness said she suf­fered from PTSD and se­vere de­pres­sion af­ter giv­ing birth to her baby. It was also then noted that the wit­ness was sui­ci­dal. Tes­ti­mony from the med­i­cal ex­pert sup­ported that.

“Moroe said the wit­ness was ad­mit­ted to the hospi­tal from June 14 un­til Au­gust 18,” the judge said.

She added that the post­pone­ment of the case did not con­cern the court, but the wit­ness had in­di­cated to the doc­tor that she was un­will­ing to con­tinue her tes­ti­mony.

“I can ac­cept that the wit­ness can­not con­tinue with her tes­ti­mony to­day or in a few months time, but I am con­cerned that she has in­di­cated that she does not want to tes­tify. The doc­tor also stated it would be dif­fi­cult to pre­dict whether she would ever be able to do so. It ap­pears her in­abil­ity to tes­tify stems more from her un­will­ing­ness to do so,” she said.

Williams added that it was also not in the in­ter­ests of jus­tice for the ac­cused to re­main in cus­tody.

“The ac­cused have been in cus­tody since May 23, 2017, which is six months ago. A fur­ther post­pone­ment un­til March next year will re­sult in the ac­cused be­ing in cus­tody for 22 months. There is also no in­di­ca­tion whether the wit­ness will tes­tify then.

“A pre­vi­ous ap­pli­ca­tion for bail on new facts by the ac­cused was also de­nied by the State and the State said it will op­pose an­other ap­pli­ca­tion should it be bought,” Williams said.

Be­cause the State only had one wit­ness to sup­port its case, the tes­ti­mony of the wit­ness held no weight.

“The ev­i­dence of the wit­ness was not tested as the wit­ness did not com­plete her ev­i­dence. The cross-ex­am­i­na­tion was only on the ev­i­dence against ac­cused one and that was never com­pleted.

“The case of the State is there­fore closed and ac­cused one is ac­quit­ted on all charges. Ac­cused two, three, and four are found not guilty on all charges as there is no case against them,” Williams con­cluded.

DIS­BE­LIEF: Za­mani Mbatha, Sylvester Ephraim, Chris­telle van der Westhuizen and Tessa Mboth­ibi were ac­quit­ted on mur­der charges in the North­ern Cape High Court yes­ter­day.

Pic­ture: So­raya Crowie

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