The 17-year-old, who is the main witness in the murder trial of Zamani Mbatha, Sylvester Ephraim, Christelle van der Westhuizen and Tessa Mbothibi, has repeatedly broken down in court, resulting in several postponements.
The four accused are standing trial for the murder of Xolile Macala who was killed and set alight in a shack in Transit Camp during the late hours of April 30 and early hours of May 1, 2016.
The four are facing charges of theft, murder and arson.
The witness was sent for medical evaluation after she had a fit in court and had to be transported by emergency services to hospital.
According to the State, the psychiatrist who examined the girl, stated that she needed to be admitted to hospital and treated for depression.
“At this stage, however, it is uncertain how long she will need treatment for and whether she will be in a position to give evidence,” State advocate Jacques Rosenberg pointed out in court on Thursday.
“It is not that she is unwilling to testify, it is just that she is not well now.”
He added that there was no indication at this stage as to how long she would need to be in hospital.
“In four weeks time we can get a progress report and some indication of whether she will be able to testify. Precisely when she will be discharged is uncertain – it could be two weeks or two months.”
He added that the witness was the State’s main witness. “If she does not give evidence, it is the end of the State’s case.”
The defence lawyers pointed out that while they accepted that the charges were serious, it was to the detriment of the accused if the case was postponed, as they were in custody.
“This is the fourth time that the State has asked for a postponement and even now there is still the same uncertainty,” they stated.
“We don’t know how much longer it will have to be postponed and whether this witness will be in a position to testify.”
It was pointed out that although the accused could apply for a new bail hearing, based on new evidence, the witness had indicated during the last court session that she was afraid of the accused.
“This will count against them in a bail application. The lower courts are also very busy and will not want to intervene in an ongoing case. The accused might have to wait for two to six months before their bail application is heard.”
Judge Cecille Williams pointed out that initially the State had asked for a postponement on medical grounds because the accused was pregnant, but now there were other medical issues.
“Her reaction is the same, irrespective of whether it is physical or mental issues. She just cries in court. We are sitting with a catch-22 situation,” the defence team argued.
“The accused have a right to a speedy trial and we cannot keep postponing willy-nilly.”
It was also stated that the defence lawyers were in the dark about when the witness would be in a position to testify.
“We do not know if this will take two months or two years. We cannot sit and wait and hope that she will be able to testify. I don’t deny the seriousness of the charges, but we have been over-accommodating.”
The defence called on the State to get its affairs in order regarding the witness. “We need to find a balance between the request of the State for a postponement and the interests of the accused.”
Judge Williams stated that she was aware of the rights of the accused, but stated that the request by the State for a postponement was not unreasonable as the witness needed treatment. “The State must be given an opportunity to allow the witness to be treated.”
Judge Williams agreed to postpone the trial until September but requested a report in about a month’s time indicating the progress of the witness and the possibility of her being able to testify.
The accused remain in custody.
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