Kimberley - Although all three men charged with the murder of 29-year-old Ashwin Malan at his mother’s guest house in Kimberley have previous convictions, their defence lawyers have appealed to the court to grant them bail.
Marlin Koopman, Rahjendra Beukes and Levert van Wyk have been charged with premeditated murder and robbery with aggravating circumstances following the death of Malan, who was shot dead at the Atlantis Guest House in September.
Two men, believed to be from Gauteng, are still being sought in connection with the shooting incident.
Ettienne Matthewson, who is defending Koopman and Beukes, argued that there was no evidence presented by the State that the murder was planned and that nothing was stolen.
Matthewson pointed out that Koopman was 31 years old, had three children and was the only breadwinner in the family, earning R1 800 a month. He has two previous convictions, one of murder and one of theft, for which he paid a fine.
“My client has been out of prison for eight years already and in that time he has never committed a crime.”
Beukes, according to Matthewson, lives with a woman who has three children and is expecting his child in December. He has a previous conviction of theft, which, Matthewson pointed out, was committed a long time ago and there are no other outstanding cases against him.
He argued further that the State had presented no evidence that there was a likelihood that the accused would evade bail or threaten any of the witnesses. “In the last eight years, they have had no clashes with the law and there is no likelihood that if they get bail they will commit another crime.”
Focusing on the merits of the case, Matthewson said that while the accused had the right to remain silent, they had played open cards with the court. “They only went to the scene to load goods and they knew nothing about the murder or the robbery.”
Matthewson added that statements presented to the court, collaborated the claim that Beukes was asked to transport a television set and would get paid. “The statement from his girlfriend also supports his explanation that he used his bakkie to transport goods and everyone in the community knew this.”
According to Matthewson, the State had not shown its hand to the court. “The State needed to show that it had a case against the accused. The Investigating Officer (Warrant Officer Patrick Dibede), in his own wisdom, did not want to give the names of the witnesses to the court. He even chose not to answer questions - like why the crime was planned. I will argue that the State’s case is not worth anything as the IO refused to give names of witnesses or even read extracts from their statements.”
Leanne Sullaphen, the defence attorney for Van Wyk, pointed out that the court was dealing with a matter which the State alleged was a Schedule Six office. “The State needed to prove that it was Schedule Six - in other words that the alleged murder was premeditated. On several occasions I asked the IO to read two or three lines from the witnesses’ statements that proves that it was premeditated, which he refused to do. The State cannot therefore say it has proof that this was a Schedule Six offence.”
She pointed out that the State also needed to prove that although the murder was committed by one person, there was common purpose.
“They also failed to prove this. All the state says is that the accused went together to the guest house but nothing about the role that each one played in the crime. The accused have already told the court that they have no knowledge of the crime. We cannot just accept what the IO says, namely that they were involved and that it was premeditated. My client says he was just sitting in the vehicle. The IO did not want to take the court into his trust, even by just giving the most important details.”
She pointed out too that there was no proof that a robbery had taken place.
“My client gave a warning statement to the IO, explaining why he was on the scene and the circumstances surrounding the crime and was very open. The IO is now stating that the accused admitted to the crime but he does not explain what exactly he admitted to or read the relevant parts from the statement.”
Sullaphen said that Van Wyk had a previous conviction, for which he received a two-year sentence and had completed a Nicro programme. “Even this was a few years ago so one cannot state that the accused keeps bumping with the law.” Sullaphen added that totally different people were pointed out in the identification parade.
“It is my submission that the IO has left us more in the dark than in the light. The State has argued that the accused cannot get bail as it has a strong case against him but it my submission that this is not the case.”
The bail hearing will continue on Monday.
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