Durban - The “arrogance and appalling conduct” of a police officer who ignored the fundamental rights of two murder suspects - leading to their acquittal this week - will come under the scrutiny of KwaZulu-Natal’s provincial commissioner of police.
Durban High Court Judge Sharmaine Balton ordered that her written judgment - scathing of the conduct of Detective Constable Faith Xaba - be referred to the commissioner, after she found that, had Xaba done her job properly, the State might have secured convictions on confessions the accused made but which were ruled inadmissible.
In the dock were Ntombizodwa Florence Shabalala and Siphiwesihle Mdletshe, charged with the murder of Shabalala’s husband, Goodman Mbonambi, in January.
Mbonambi was found dead at his home in the Khohlwa area, near Kranskop. He was kneeling on the floor, hanging from a rope. There were marks and blood on his body and it appeared he had been assaulted and dragged.
Police believed he had not committed suicide and Xaba was tasked with investigating. Shabalala was arrested. This led to the arrest of Mdletshe and others implicated in the crime, some of whom turned State witnesses.
In her written judgment, Judge Balton said the case had involved a “trial within a trial” to determine the admissibility of the statements made by the two accused after their arrest and while detained at the Tongaat police station.
The judge criticised Xaba for losing her pocketbook, which included details of the interviews with both of the accused, “an important record of investigation” which could have substantiated some of the facts.
While in her evidence the police officer was adamant that she had read out their constitutional rights, it was pointed out to her that in Shabalala’s warning statement, it had been noted that Shabalala had wanted a legal aid attorney.
The judge said Xaba, in evidence, had given various “illogical reasons” for ignoring this request.
This included that Shabalala had said an attorney “would not let her say what she wished to say”, that it would cause a delay and Shabalala did not want to go in and out of cells. The policewoman also said the suspect had to be charged within 48 hours and, if she waited for an attorney, this might have elapsed.
Xaba conceded that it was a misjudgement and agreed that Shabalala should have been returned to cells to wait for an attorney to arrive.
The judge said Mdletshe had also asked for but been denied access to an attorney.
“This court is appalled at the fact that Xaba did not respect the constitution or Bill of Rights. She exhibited an indifferent attitude to the legal requirements of police officers upon the arrest of a suspect.
“This unfortunately, as was pointed out to her, results in courts having to acquit people who have committed serious crimes,” the judge said.
The judge ruled the statements were inadmissible as evidence
She said the evidence of the other witnesses had shown that Shabalala had a plan to kill her husband, but the State had rightly conceded that it had not proved its case.
Both accused, who had pleaded not guilty, closed their cases without testifying and, the judge said, “the court very reluctantly acquits both accused”.