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Durban - An “eleventh-hour” application for an adjournment has landed the State in hot water in the civil matter relating to the alleged murder of a Durban taxi boss by Cato Manor Organised Crime Unit policemen.
A judge on Wednesday demanded that legal representatives for the Minister of Police explain their application and give reasons for its late filing.
Bongani Mkhize’s wife, Fakazile, and his four children have launched a R2.3-million lawsuit in the Pietermaritzburg High High Court against the police for damages, alleging his death was wrongful and unlawful.
The civil trial was expected to begin on Wednesday, but due to the application to adjourn, Judge Gregory Kruger rolled the case over to Thursday.
On February 3, 2009, Mkhize was shot dead, allegedly by Cato Manor Organised Crime Unit policemen, while he was driving along Umgeni Road in daylight.
These police members are currently being prosecuted in the Durban High Court.
Police at the time said Mkhize had shot at them and they returned fire.
The police alleged Mkhize had been linked to the murder of traditional leader Mbongeleni Zondi, 37, head of the Zondi clan, who was killed in uMlazi in 2009.
In October 2008, Mkhize secured a Durban High Court interdict, alleging police wanted to kill him, after he was told police suspected him of masterminding the death of police Superintendent Zethembe Chonco. Mkhize was killed four months later.
In their application to adjourn the matter on Wednesday, SAPS representative Wayne McCullough submitted that the civil proceedings should be stayed, pending the finalisation of the criminal trial.
McCullough said that each of the police members who fired shots on the day of Mkhize’s death had been charged with murder, along with 26 other accused who the State contends were all part of a planned participation in the killing of civilians without lawful cause.
In total the accused face 146 charges.
McCullough said that the police members in question were essential witnesses to the civil proceedings and, because of the pending criminal trial against them, they would not be compelled to answer any questions that might incriminate them.
He said that after consulting with the police members’ legal representatives, the police were informed that they would be relying on the right against self-incrimination if called to testify.
“Since the onus lies on the Minister of Police to prove that the fatal shots that led to Mkhize’s death were fired in circumstances that were lawful, potential prejudice to the police is manifest,”McCullough said, adding that in order to avoid the interests of justice being irretrievably compromised, the trial should be adjourned until the police members who fired the shots at Mkhize became compelled as witnesses.
Opposing the application, Petrus Coetzee, the Mkhize family attorney, said that the application by the police was an attempt to delay the matter.
Coetzee revealed that at a pre-trial conference on April 16 this year he had advised the State that if they wished to file an application to adjourn, a substantive application should be lodged by April 29, which the State legal counsel undertook to do.
“Mkhize was killed in February 2009 and this civil action was instituted in March 2011, more than three years ago.
“No explanation has been tendered by the state as to why they could not timeously lodge the application to adjourn,” Coetzee said.
He submitted that substantial costs had been incurred in preparing for the trial.
“If the trial is adjourned for an unknown period of time, this would be hugely prejudicial to my clients.”
Coetzee said that the prejudice the Mkhize family stood to suffer far outweighed any alleged prejudice to be suffered on the part of the State.
“If what has been averred by the State is true and 146 charges have been proffered against the accused, it is safe to say that it may take years for the criminal prosecution to be finalised,” Coetzee said.
Judge Kruger will rule on the application on Thursday.