‘Suspicious’, but case against Mabena not proved beyond reasonable doubt
THE COURT viewed his behaviour as suspicious and in need of an explanation. But, in the end, it was not enough to conclude he took part in one of the most high-profile murders that has come before the Western Cape High Court, that of the murder of Acting Judge Patrick Maqubela.
Today, after having a murder charge hanging over his head for almost three years, Vela Mabena – a distributor of Forever Living health products – is a free man.
The main evidence the State presented against Mabena was that he was at the block of flats on the morning of June 5, 2009 – the day the acting judge was killed – and that he and Thandi Maqubela communicated via cellphone before and after the murder. Mabena did not deny going to the block of flats, but denied involvement in the acting judge’s death.
According to him, he fetched a book on natural remedies from Maqubela, which he needed for his business, and was at the flat for about five minutes. He did not come into contact with the acting judge at all, he said.
Judge John Murphy said there were strong indications that the acting judge was already incapacitated when Mabena arrived, because Maqubela had already started using her husband’s cellphone after 8am and he didn’t respond to his secretary’s attempts to reach him.
While Judge Murphy acknowledged that it was possi- ble the acting judge was unconscious and that Mabena helped kill him, he pointed out that this amounted to speculation.
There was no evidence placing Mabena in the bedroom where the body was found.
“Furthermore, the evidence in relation to the time frame is not satisfactory and it is reasonably possible that (Mabena) was at the flat for a mere five minutes which… appears to be an insufficient window of opportunity to bring about a death by means of suffocation.
“Likewise, one cannot rule out that the prior telephonic communication between the accused was indeed innocent. They worked together and had shared business interests. With one exception, the calls were of relatively short duration, being at the most in the region of four minutes,” Judge Murphy said, adding that it could not be said that Mabena’s version was not reasonably possibly true.
However, he described the contact between them after the killing as “indeed suspicious”, saying that the nature of and reason for the communication was not explained.
In addition, both lied about speaking to each other on June 8, after police had taken Maqubela’s statement, and Maqubela lied to the police when she told them she did not have Mabena’s number.
“This together with (Mabena’s) false denial that he spoke to (Maqubela) on (June 8), and her affirmation of that denial, gives rise to an inference, at least prima facie, that there is something about their communication which the accused wished to hide.
“The false version, and the untruthful affirmation of it, amplify the suspicion against (Mabena) and are corroborative of the prima facie evidence that the accused consulted in order to co-ordinate their versions before (Mabena) met with the police. His failure to testify strengthens the adverse inference that he knew of the deceased’s demise and at least of (Maqubela’s) need for exculpation in relation to it,” he said.
However, he added that the mere fact that he knew of the acting judge’s death and acted suspiciously was not sufficient to conclude beyond reasonable doubt that he participated in murder.
“Other reasonable inferences are possible. He may merely have been willing to assist (Maqubela) cover her tracks or have known of the actual circumstances of the death, but was prepared to lie about it. Moreover, the evidence does not reveal that (Mabena) had any apparent motive, financial or otherwise, to kill the deceased. He did not know him, had never met him and his relationship with (Maqubela) was a relatively recent acquaintance.”
While he ruled that Mabena was entitled to an acquittal, he added that the court’s finding was not an unequivocal conclusion that he did not participate.
“Rather, we find that the prosecution has not discharged its onus and proved the case against him beyond reasonable doubt. In colloquial terms… our finding is one of not proven rather than an affirmation of factual innocence,” Judge Murphy said.
Mabena refused to speak to the media after his acquittal and raced off, his face completely covered, to escape cameramen and photographers.
ACQUITTED: Vela Mabena