‘Sus­pi­cious’, but case against Mabena not proved be­yond rea­son­able doubt

Weekend Argus (Saturday Edition) - - NEWS - FA­TIMA SCHROEDER

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

Newspapers in English

Newspapers from South Africa

© PressReader. All rights reserved.