Onus on Maqubela to show prejudice – judge
THANDI MAQUBELA must prove she will be prejudiced if the charges of murder and forgery against her are amended, the Western Cape High Court ruled yesterday.
Lawyers for Maqubela, who is the widow of slain acting judge Patrick Maqubela, and co-accused Vela Mabena have until Tuesday to prepare their evidence about such prejudice.
The defence had argued that it was the State’s responsibility to prove an absence of prejudice.
Judge John Murphy ruled that the Criminal Procedure Act did not place such an onus on the prosecution.
The two have pleaded not guilty to suffocating the judge with cling-wrap in his Sea Point, Cape Town, apartment on June 5, 2009.
Maqubela has also pleaded not guilty to forging her husband’s signature on his will, and then fraudulently presenting it at the Johannesburg office of the Master of the High Court.
Last month, Judge Murphy indicated he intended amending the charges on the indictment.
On the murder charge, he wanted to extend the cause of death by adding “or means unknown” to “suffocation with plastic”.
He said this was after the State previously conceded that it was unable to submit evidence regarding an alternative means of death.
Regarding Maqubela’s alleged forgery of her husband’s will, he wanted to amend the charge from “making of the signature” to “making of the will”.
Marius Broeksma, for the defence, had argued that extra witnesses would have to be called and other evidence would have to be placed before the court should the amendments be made.
It would also probably incur a cost and time prejudice because the trial would take longer to conclude.
Murphy said the consideration of prejudice was dependent on common sense and judicial knowledge, and the presumption of innocence until proven guilty.
“The question of prejudice is a question of fairness to me. Is it fair to burden you with this at this time? It's a value judgement,” he said. – Sapa