Durban - A lack of ballistic tests on the bullet found in a dead IFP supporter seriously undermined the State's case, the Durban Regional Court was told on Wednesday.
Simphiwe Moloi told the court that no ballistic tests had been carried out on the bullet found in Cebisile Shezi to link it to cartridges at the scene, or to his clients' firearms.
“In the absence of any ballistic evidence, the accused ought to be released,” he submitted.
Moloi was speaking while making an application to have charges dropped against National Freedom Party councillor Mgezeni “Bhungu” Gwala and his son Celimpilo “Mjabelelwa” Gwala.
The Gwalas and security guard Skhumbuzo Nxumalo are accused of shooting Shezi dead on October 6, 2012, near the Thembalihle train station in KwaMashu, after Inkatha Freedom Party supporters converged on the Gwala home, near the station. She was wearing an IFP T-shirt at the time.
Police Minister Nathi Mthethwa had addressed IFP supporters at a sports field in A-section, KwaMashu, earlier that day. He did so in an attempt to reduce tension in the area after the abduction of IFP councillor Themba Xulu. Xulu was out on bail after being arrested for allegedly trying to burn down Bhungu Gwala's house.
Xulu's body was found the next day. He had been shot.
Celimphilo Gwala and Nxumalo are in custody. Bhungu Gwala is out on bail of R20,000.
The court, which was packed to capacity with jovial NFP and IFP supporters, heard Moloi tell magistrate Trevor Levitt that the only evidence provided by the State had been to discount the possibility that Shezi was killed by a bullet fired into the air as a warning.
“There are no links between the bullets, the shell casings and the firearms that were recovered,” he said. Seventeen shell casings were found at the crime scene.
Nxumalo's lawyer, Lungile Kheswa, argued that the case against his client should also be discharged, in the light of the contradictory evidence provided by State witnesses Hlengiwe Joyce Mzolo and Zamokwakhe Luthuli.
“The manner in which these witnesses gave evidence leaves much to be desired. We do not know from their evidence whether accused number five 1/8Nxumalo 3/8 was there or not,” he submitted.
During their testimony, Mzolo and Luthuli gave different descriptions of a man they identified as doing the shooting.
Kheswa accused the State of pursuing the case in the hope that the accused would take the stand and implicate themselves.
He pointed out that the two State witnesses had put Gwala's other son Bonginhlanhla Gwala and another security guard, Malusi Sibusiso Ncengwa, at the scene of the shooting.
Charges were withdrawn against them when closed-circuit television footage showed Bonginhlanhla was at his apartment in Umhlanga at the time, and Ncengwa proved he was working in Umbilo.
Kheswa also referred to the police's failure to carry out ballistic tests.
“That was not done. This is a very poor state of affairs,” he said.
The SABC reported on Monday that the court heard testimony from the commander of the KwaMashu police station, Brigadier Zakhele Nzama.
He reportedly testified that Mgezeni Gwala was at the KwaMashu police station waiting to speak to Mthethwa at the time of the shooting.
Unlike previous court appearances, when there was a heavy police presence, there was only one court orderly present on Wednesday.
The prosecution was expected to present its case opposing the applications by Moloi and Kheswa.