Durban — The Durban Magistrate’s Court dismissed an application by the accused in the trial into the 1989 murder of an activist with the United Democratic Front (UDF), an affiliated of the ANC, to have the murder charge against him dropped.
Gugulethu Wesley “Matiri” Madonsela, who the State alleges was affiliated to an A-team that worked with the Natal Security Branch, is charged for the murder of political activist Siphelele Nxumalo, 17
Nxumalo was shot in Chesterville and died as a result of multiple gunshot wounds.
On Tuesday, senior State prosecutor advocate SH Ngcobo rested the State’s case after leading evidence by the State’s last witness, former SAPS officer Vinesh Narayan who had taken over the investigation in 1989.
Narayan had testified that in 1989, Madonsela, along with second accused Mandlenkosi Comrad Ngubeni, had been accused of Nxumalo’s murder.
“The docket was enquired by the attorney-general’s office and was sent there on 12 July 1989,” the former officer said.
“The next time I saw the docket was when it came back on 15 June 1990. That’s when I noticed that accused two was found not guilty and discharged. I also noticed that accused one failed to appear in G court at Durban Magistrate’s Court on 12 October 1989.
“A warrant of arrest was issued for him. I also received the warrant, I failed to trace Madonsela. I used his current address – he was no longer there – spoke to neighbours, interviewed residents at home and gathered informants (but) he was nowhere to be found in that area.”
After the State had rested its case, Madonsela’s attorney, Bongani Cele, brought an application before the court, under Section 174 of the Criminal Procedure Act, calling for the charges against his client to be dismissed.
Cele said his application was based on the quality of evidence tendered before the court against his client, and not based on witnesses.
“It’s the same evidence that discharged accused two that is before court … It is unconstitutional to expect the accused to testify on his behalf. He is saying he did not shoot Nxumalo, he had no motive … although motive is not grounds to be found guilty … He denies ever killing his friend … The evidence tendered to the court is poor …There’s no case to answer. I ask this court to discharge my client.”
Dismissing Madonsela’s bid, acting magistrate BK Khumalo said he could not follow suit and dismiss the charge, having been provided with transcripts of the proceedings which had seen Ngubane acquitted.
“It’s correct that the State relies on evidence of a single eye witness in the commission of the offence. This witness testified that she knew the accused before the day of the incident. She said the area where the incident happened was well lit and she recognised him. She gave details regarding the commission of the offence.
“The court has to base its opinion on the evidence before it. I’m of the view that if there’s a prima facie case against the accused by the State, therefore the application is refused,” Khumalo said.
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