Judge quashes brigadier’s quest to remain silent
AN URGENT application by a police brigadier to not testify against her colleague has failed, with the presiding judge chastising her legal team for trying to defeat the ends of justice.
Benoni cluster commander, Brigadier Vuyokazi Ndebele, was suspended from her position last August. This was after she was criminally charged for alleged fraud relating to the recruitment of entry-level SAPS candidates in the Moroka policing cluster.
She was accused of changing the recommended list of recruits to include candidates who had not met the SAPS’s minimum specifications.
However, in January, the criminal charges against her were dropped and instituted against another officer involved in the hiring, Captain Johannes Mokheseng.
The inter nal disciplinary hearing cleared the brigadier, according to her lawyer, James Ndebele – no relation.
Mokheseng’s fraud trial was set to start next week, and the state subpoenaed the brigadier to testify as a Sate witness in the trial.
However, yesterday, Ndebele and her lawyer launched an application at the South Gauteng High Court to shield her from having to testify in the trial.
In an affidavit submitted as part of the application, Ndebele said: “The purpose of this application is to set that subpoena aside as a violation of my constitutionally entrenched right to a fair trial, including my rights to be presumed innocent until proven guilty, to silence and to be protected from self-incrimination.”
According to Ndebele, the requirement for her to testify is an attempt by the SAPS to further harass and intimidate her while she remains on paid and indefinite suspension for the charges for which she was acquitted.
Ndebele’s attor ney asked the prosecution to send a list of questions set for the testimony by June 25, but they failed to do so.
“The request was made to determine the relevance, if any, of the evidence sought from me and to establish why I had been summoned to appear at the criminal trial…
“I am advised that these charges, although withdrawn, can be reinstated. It is on this basis… that I seek to have the subpoena set aside,” said Ndebele’s statement.
However, at yesterday’s court proceedings, Judge Bashir Vally was not impressed with this argument. “She wants to defeat the ends of justice… She wants (the accused) to walk because she may be a criminal herself,” said Vally.
He noted that while the brigadier was fully within her rights to refuse to answer questions on the stand, it would not be legally appropriate for her not to testify altogether, saying the legal system would not function if people did not testify in such cases.
According to Judge Vally, it appeared that Ndebele would claim Mokheseng forged her signature for the fraudulent hiring, a material fact that was key in Mokheseng’s upcoming trial. State prosecutor on Mokheseng’s case, Sifiso Khumalo, said that without being able to argue on this point, it was entirely likely that Mokheseng would be acquitted.
Vally told Ndebele’s lawyer, Jonathan Heher, that the law would protect his client from self-incrimination, but that it was highly important that she testify on the material facts of Mokheseng’s claims. He dismissed the application.