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Durban - While it is now known that one of the mayoral bodyguards allegedly involved in last week’s N3 shooting was previously convicted of attempted murder, this fact eluded one very important group of people on Monday on morning - the magistrate, public prosecutor, and defence lawyer involved in the bodyguard’s bail hearing.
Thulasizwe Mbanjwa, who was previously convicted on two counts of attempted murder and one of conspiracy to commit murder, was granted bail of R5 000, along with his co-accused Sithembiso Mokoena, after the pair were charged with attempted murder for allegedly firing at the motorist, known as Wynand.
However, during their bail hearing neither Mbanjwa nor his lawyer, Sphiwe Mncwango, revealed the previous conviction - as required by law - to magistrate Wendolyn Robinson, presiding in the Pinetown Magistrate’s Court.
Mbanjwa was found guilty of the crimes after the murder of former ANC member Sifiso Nkabinde in 1999 and was sentenced to seven years in prison.
National Prosecuting Authority spokesman Nathi Mncube said a full statement would be issued once “all the necessary information” had been gathered, but he could not comment on what action would follow.
“It is law 101 for any lawyer to ask his client the question (about a previous conviction). Of course, a client may lie to you. But, if a lawyer does not ask, that is negligence. And if he asks, and is told, and withholds the information, that is defeating the ends of justice,” said advocate Paul Jorgensen, who specialises in criminal matters.
“It is a fundamental pre-requisite of any bail application that previous convictions and pending cases be disclosed. And, if you fail to disclose, that in itself is a criminal offence.”
Jorgensen said previous convictions were always a consideration when granting bail, especially if they were for similar offences, adding that it also did not matter how old the previous conviction was.
When contacted for an explanation, Mncwango said he did not want to comment and would consult with his client.
However, it was reported that Mncwango said he was “not concerned about the past conviction” and “it was of no significance to the matter”.
A senior magistrate, who declined to be named, said if this was his matter he would want to take it further.
“One option would be to ask the prosecutor to investigate and charge the accused with failing to disclose the previous conviction.”
He said the law allowed for the state to bring an application asking for bail to be cancelled, and the accused would have to apply for bail afresh.