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Confusion reigned on Thursday over whether the bail application of Olwethu Mathiso would have to be re-heard in the Cape Town Magistrate's Court.
Mathiso, 21, the gardener of Archbishop Emeritus Desmond Tutu's daughter, was in the dock for allegedly killing her domestic worker, Angela Mscinga.
His bail application had been partly heard by Magistrate Mandi Tyulu, who had since been suspended pending disciplinary proceedings, and had not made a ruling.
Further details on the suspension were not immediately available.
Andre Kirsten, for the defence, said he was not happy with presiding Magistrate Zwelidumile Sogwagwa taking over a partly-heard bail application.
“It's impossible to gather all the impressions that Tyulu gathered from witnesses up to this point... my client made certain testimonies and impressed Tyulu in certain ways,” he told the court.
“Although he would have noted verbal applications... the court cannot gather from these notes the impressions of honesty or dishonesty.”
Kirsten said there was no directive from the Criminal Procedure Act on the procedure to be followed in such an instance.
In cases where a bail application had been partly heard in the High Court, the evidence had been evaluated afresh.
Sogwagwa said everyone could agree that the transcriptions of the application were available in court and that Tyulu would not be available for a while.
He asked that all parties decide whether he could proceed.
“(I ask) especially the defence because we are quite worried that if there's no agreement between the parties, the defence can claim (there were) irregular proceedings (if it reaches) the High Court (for a directive),” the magistrate said.
Cecil Engel, for the State, said the matter should proceed as soon as possible.
“The State (however) agrees that we are dealing with a very unusual case where there are no hard-and-fast rules of what must happen.”
Sogwaga then ruled that the bail application would be heard afresh later on Thursday.
Engel then told the court that the investigating officer, Constable Thabo Mwanda, was actually on leave until July 24.
Although he was present in court, it was not suitable that he testify, the lawyer said.
After a meeting in the chambers, Sogwagwa ruled that the application would be heard regardless.
Mwanda would face further cross-examination on Thursday afternoon and Mathiso would also take the stand to give additional evidence.
Mscinga's body was found in Mpho Tutu's Milnerton home on April 12. - Sapa