Drug accused makes new bail attempt
NEW EVIDENCE in the trial of two foreign nationals accused of dealing in drugs, originally reported to have an estimated street value of more than half a million rand, resulted in a second bail application in the Kimberley Magistrate’s Court yesterday.
Augustine Bizimane, 30, and Ikechukwu Nwabynwane, 32, have been remanded in custody since they were arrested as part of a Hawks intelligence-driven operation in June last year.
At the time of their arrest, the priority crime directorate claimed that drugs with an estimated street value of hundreds of thousands of rands had been seized during the operation. Yesterday, however, the accused’s legal defence argued that the actual monetary amount involved was too little to justify the incarceration of the second accused.
While Bizimane abandoned his new bail application yesterday, his co-accused, Nwabynwane, argued that, with little evidence against him and the investigating officer acknowledging during the trial that his statements had not been constitutionally obtained, his incarceration for the duration of the trial needed to be re-evaluated.
Nwabynwane is facing two counts of contravening the drug trafficking act, involving transactions to the value of R5 000 and R8 000 respectively, and his legal representative, Advocate Ferdi Nel, pointed out that since neither count against his client involved drugs exceeding the value of R10 000, the onus was on the State to validate why it was in the interest of justice that he remain in custody.
The prosecution argued that since the two transactions formed part of the same operation, with the combined value exceeding R10 000, the bail should be a schedule five application, but Magistrate Brenda Roodt disagreed.
“In my opinion, you can’t take more than one count on a statutory offence,” explained the magistrate. “Originally, when we started with the bail application, this issue was not argued in the manner it is being argued today.
“If Advocate Nel’s argument is correct then the State must show that it is in the interest of justice to keep the accused in custody. If the prosecution is correct then the burden of proof changes and falls on the accused’s shoulders.”
“After considering the facts, my decision is that the schedule that I find applicable is schedule one, which puts the burden on the State.”
Following this decision, Nel proceeded with his client’s bail application on new facts, by stating that the accused had already been in custody for nearly eight months after the original application was denied on July 29 last year.
“It is now more than seven months later and the trial is still not finalised as the court is busy with a trial within a trial,” he said while reading Nwabynwane’s affidavit into record.
“I’m charged with two counts of dealing in drugs but the agent involved has already conceded that my statement was obtained unconstitutionally. Although the investigating officer testified that he saw me daily (dealing in drugs) my name was only added to the list afterwards. I deny the allegations against me as well as those made by the investigating officer.”
In his affidavit, the accused added that his attorney had been given copies of footage, believed to be evidence of his involvement.
“The only person on this footage is the first accused,” the court heard. “I’m further advised that the respondent does not have evidence that I delivered drugs and the State doesn’t have a strong case against me.”
The bail application is scheduled to continue early next month.