Durban — On Thursday in the Pinetown Magistrate’s Court the defence for the SANDF member charged with his wife’s murder decided to put its application to re-open its case in the accused’s bail application on the back burner until the State had closed its case.
Advocate Muzi Mzelemu representing accused Lwanda Mxolisi Zungu had previously made this urgent application soon after closing the defence’s case in the bail application when the State produced the investigating officer’s affidavit for its case in the bail affidavit.
Zungu is accused of shooting and killing his wife Tania Msane Zungu in their Pinetown home while his two children and their grandmother Gwen Msane were in the house.
After that, he ran away and later handed himself to the police.
Mzelemu had made this application because he had not had sight of this affidavit and that the defence needed to reply to the allegations made in the affidavit.
The matter had previously been adjourned for Magistrate Wendalynn Robinson to make a ruling on the defence’s application however before making her ruling Robinson had a few questions for Mzelumu.
“In your application, you have not indicated what it is you want to re-open your case on,” she said.
Mzelemu addressing the court said following the last occasion and after perusal of the investigating officer’s affidavit as well as consultation it came to light that certain things need to be dealt with in the applicant's application.
“However in hindsight, I think it is appropriate that since the affidavit has not yet been admitted into evidence, we can't reply to it. It is right that we wait for the affidavit to be handed in then we reply,” he said.
After the State presented its case in the bail application by handing into the court’s record, the investigating officer closed its case and Mzelemu then proceeded with his application to reply to the investigating officer’s affidavit.
However, Magistrate Robinson ruled that the defence not be allowed to respond to the investigating officer’s affidavit.
The defence had wanted to reply to aspects in the affidavit relating to actual evidence showing the murder was premeditated, a Schedule 6 offence according to the Criminal Procedure Act, and the conflicting versions of what transpired on the morning of the shooting.
Robinson ruled that the charge remains a Schedule 6, as she had not been the presiding officer when charges were read to the accused when he first appeared in court, and the matter was only before her when Zungu indicated that he wanted to apply for bail.
“On the date of the bail application 26 March the Schedule issue arose and the court heard arguments and it was rolled over for a ruling which was circumvented by a Director of Public Prosecution (DPP) certificate that specified that the matter falls under Schedule 6, there was no opposition from the defence in terms of the Schedule then.
“The Applicant then chose to give oral evidence in his bail application. I’m bound by what happened at the beginning of the matter so the matter remains at Schedule 6. From reading the investigating officer’s affidavit am of the understanding that some of these issues will be addressed at the trial stage. The State is correct in saying that irrespective of what happens in other courts there’s no legislation that states that the applicant is given the right to reply, the law is clear that the onus is on the applicant. In respect of witness discrepancies, that is an issue that will have to be decided in trial,” said Robinson.
The court, after being addressed by both the defence in respect of the bail application the case was adjourned to Monday for the State to address and Magistrate Robinson to possibly make a ruling on her decision on bail.
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