LIES, LIES AND DAMNED LIES

The lawyer of mur­der ac­cused Ndudula, who was ac­quit­ted, has lodged a com­plaint over con­duct

Daily Dispatch - - Front Page - ASANDA NINI SE­NIOR RE­PORTER asan­dan@dis­patch.co.za

NPA in­ves­ti­gat­ing 2 state pros­e­cu­tors in Bulelwa Ndudula mur­der trial for al­leged “un­eth­i­cal con­duct... un­der­hand tac­tics... in des­per­ate bid to make sure she was de­nied bail... to se­cure con­vic­tion at all costs”

Two se­nior state pros­e­cu­tors who presided over ac­quit­ted mur­der ac­cused Bulelwa Ndudula’s bail hear­ing and trial are be­ing in­ves­ti­gated for al­leged “un­eth­i­cal con­duct”.

The Na­tional Prose­cut­ing Au­thor­ity is in­ves­ti­gat­ing the con­duct of ad­vo­cates Sakhumzi Mt­sila and Quedo Botha.

This was af­ter Ndudula’s lawyer ad­vo­cate Mike Maseti had laid a for­mal com­plaint with their bosses.

Maseti ac­cused the two of ap­ply­ing “un­der­hand tac­tics” dur­ing the bail hear­ing and trial of his client, “in a des­per­ate bid to make sure she was de­nied bail” and to “se­cure con­vic­tion at all costs”.

Botha and Mt­sila’s al­leged mis­con­duct could prove costly as Ndudula is su­ing the NPA and the po­lice for a com­bined R20m for un­law­ful ar­rest, de­pri­va­tion of lib­erty, em­bar­rass­ment, degra­da­tion and hu­mil­i­a­tion and ma­li­cious prose­cu­tion.

Ndudula was ar­rested in Septem­ber 2016 for the al­leged mur­der of her politi­cian hus­band Sakhek­ile Ndudula, who was shot four times by un­known gun­men at his Cam­bridge West home in East Lon­don.

She was de­nied bail in Oc­to­ber 2016 and spent two months in jail be­fore she suc­cess­fully ap­pealed and was re­leased on bail.

Af­ter a lengthy trial from May this year, Ndudula was ac­quit­ted on Oc­to­ber 8 by Judge Igna Stretch.

This was af­ter ev­i­dence emerged dur­ing the de­fence’s case that there were a pos­si­ble two firearms used dur­ing Sakhek­ile’s shoot­ing.

Such ev­i­dence, con­tained in a re­port by the po­lice’s bal­lis­tic ex­pert who an­a­lysed bul­let car­tridges found on the scene, was never pre­sented to the court by the state.

The sec­ond gun ev­i­dence was only in­tro­duced by Maseti, who said they had bumped into such cru­cial ev­i­dence “by sheer luck”.

At the time he ac­cused Mt­sila of de­lib­er­ately hid­ing the cru­cial ev­i­dence.

As a re­sult, the bal­lis­tic re­port re­sulted in Ndudula’s ac­quit­tal.

In his com­plaint let­ter to NPA’s pro­vin­cial act­ing di­rec­tor of pub­lic pros­e­cu­tions (DPP), ad­vo­cate In­dra Gober­dan, dated Oc­to­ber 15, Maseti, ac­cused the two “un­eth­i­cal” pros­e­cu­tors of “to­tal dis­re­gard of ethos gov­ern­ing ad­vo­cate’s pro­fes­sion”.

Maseti ac­cused Botha of “mis­lead­ing” court dur­ing the bail hear­ing, about the ex­is­tence of two wit­nesses who had al­legedly heard the Ndudula’s fight­ing on the morn­ing of the shoot­ing.

He ac­cused Mt­sila of con­ceal­ing ev­i­dence that showed that at least two guns were fired on the day Ndudula’s hus­band died in a hail of bul­lets.

“I wish to reg­is­ter a com­plaint of to­tal dis­re­gard of ethos gov­ern­ing the ad­vo­cate’s pro­fes­sion and that of gen­eral de­cay that is linked with of­fi­cers of the court, who in pur­suit of their own am­bi­tions, go all out to present ev­i­dence in court know­ing that the facts upon which they premised that ev­i­dence is down­right un­true, il­le­gal, and that it is un­eth­i­cal of them to do so.

“This in­jus­tice leaves an in­deli­ble mark on those who on ac­count of thug­gery pre­sen­ta­tion of ev­i­dence, by the pros­e­cu­tor dur­ing the bail ap­pli­ca­tion, when he knew that the de­fence could have not had ac­cess to the docket, lies and mis­lead the court, claim­ing that the case that the state would present against Mrs Ndudula was unas­sail­able and that there was no de­fence at all.

“Through this act of cav­a­lier pos­tu­lat­ing by [the] state, cou­pled with the fact that there may be a like­li­hood that Mrs Ndudula would in­ter­fere with state wit­nesses and ev­i­dence, court re­fused her bail,” wrote Maseti.

“As a di­rect con­se­quence of un­pro­fes­sional con­duct of Botha, Mrs Ndudula had to con­tend with the in­dig­nity of hav­ing to re­port to the po­lice sta­tion daily, an act com­men­su­rate with mon­i­tor­ing of dan­ger­ous crim­i­nals.”

Maseti said had the pres­i­dent mag­is­trate been told that the “star wit­ness on whose ev­i­dence that the state was op­pos­ing bail, had in fact de­posed to two con­flict­ing state­ments, I doubt if court would have made an or­der deny­ing Mrs Ndudula bail”.

“We can­not lessen be­lief that the pub­lic is en­ti­tled to some high mo­ral stan­dards that of­fi­cers of the pros­e­cu­to­rial au­thor­ity should em­brace and Mr Botha failed dis­mally to do so.

“As if that was not enough, Mrs Ndudula had to con­tend with fur­ther thug­gery in the high court, even though the state knew that at the very least, the bal­lis­tic re­port men­tioned the pres­ence of two firearms.

“Con­trary to ethos of ad­vo­cates’ pro­fes­sion, this re­port that was damn­ing on the state’s case was not dis­closed, even to court, mean­ing they mis­led court on a fact they were aware of.

“Mr Mt­sila failed that lit­mus test that we all have to live up to,” charged Maseti.

Mt­sila on Fri­day re­fused to com­ment, say­ing he was “not in a po­si­tion to com­ment about such is­sues”, while Botha could not be reached.

NPA re­gional spokesper­son Tsepo Nd­walaza con­firmed re­ceipt of the com­plaint.

“We con­firm that act­ing DPP has re­ceived let­ter of com­plaint from Mr Maseti.

“The act­ing DPP con­firmed that the let­ter has been for­warded to ad­vo­cate Sel­van Gounden, who is act­ing head of the Gra­ham­stown of­fice, who had re­quested a full re­port from the pros­e­cu­tors in­volved.

“We are await­ing the said re­ports and rec­om­men­da­tions by ad­vo­cate Gounden. Once re­ports are re­ceived, ap­pro­pri­ate steps, if any, will be taken against the pros­e­cu­tors,” Nd­walaza said.

● De­liv­er­ing her judg­ment last month, Stretch also lam­basted Mt­sila over his re­sponse dur­ing trial when asked about the bal­lis­tic re­port the state did not present in court.

Mt­sila had told court that: “The ev­i­dence taken holis­ti­cally does not ex­clude the ac­cused from the com­mis­sion of the of­fences, de­spite the ex­is­tence of ev­i­dence that two firearms might have been used.”

This prompted Stretch to re­mark: “In my view, such a sub­mis­sion on be­half of the party on whom the onus rests to prove its case be­yond a rea­son­able doubt, can only be de­scribed as friv­o­lous, vex­a­tious and ir­re­spon­si­ble. The duty of the prose­cu­tion is to seek jus­tice, not to blindly and pur­pose­lessly plun­der af­ter a con­vic­tion at all costs.”

Pic­ture LISEKHO MADIKANE

BULELWA NDUDULA:

Pic­ture: MICHAEL PINYANA

AN­GRY: Ad­vo­cate Mike Maseti, right, who de­fended Bulelwa Ndudula, 46, in her mur­der trial, has lodged a for­mal com­plaint against two state pros­e­cu­tors in­volved in the trial.

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