Durban — The judge in the July unrest matter that had been set down for sentencing on Wednesday came down on the defence and the State as sentencing had to be postponed in the Durban High Court.
In May brothers Dylan and Ned Govender were found guilty of the assault of 19- year-old Mondli Majola during the 2021 July unrest in Phoenix.
They had been charged with Majola’s murder and the attempted murders of Nkululeko Mangwe, Mxolisi Putuzo, and Qaphelani Mkovu. They were acquitted of the murder and attempted murders, and instead found guilty of assault with intent to do grievous bodily harm.
Their sentence was postponed due to an outstanding probation officer’s report.
Another cause for the postponement is that the men's counsel intend to have both the correctional and probation officers’ reports looked at by an expert witness who would testify. The men’s counsel had wanted the matter adjourned to August 17 when the expert was available, however Judge Gregory Kruger did not entertain this request.
“I'm not interested in the availability of your expert, I'm sick and tired. The next date will be August 4,” he said.
Judge Kruger also came down on the State, asking why the correctional services officer’s report only arrived on Wednesday morning while court was in session.
“Where are they now? Were they not told to be in court? Why is the report only available today knowing well that the State needs to look at it in advance? This is totally unacceptable. You should subpoena them (the correctional officer and probation officer). What happens to the accused’s bail, I extended it the last time, are we going to keep on extending it? Why should I extend bail? I want to finish this matter today I made myself available when it's recess. Mr Mbokazi, ensure that whoever needs to be subpoenaed, is by then. Bail is extended till August 4,” said Judge Kruger.
Before the matter was officially called on to the court record, State Prosecutor Advocate SN Mbokazi and the men’s counsel Advocate Carl van der Merwe SC as well as Advocate Christo van Schalkwyk SC were seen going to the judge’s chambers.
Judge Kruger, when the court was in session, expressed how he did not take kindly to be being approached in chambers.
“I conduct my proceedings in court, I don't do things in chambers. Coming to chambers and telling the judge that you want an adjournment is a no.”
Advocate Van der Merwe explained that it was a formality to alert the judge of their intended request for an adjournment.
The defence’s expert witness, a forensic psychologist, would need to have a look at both the correctional and probation officers’ reports before compiling her own, which she would testify on. The State would also need to have sight of the experts’ report.
Criminal expert William Booth said it was normal procedure for the defence to have its own expert look at the two reports.
“In any matter when it comes to sentencing, if the State wants to present evidence in this regard the defence has a right to call an expert in respect of sentence. It would be quite normal for the defence witness to have sight of the State’s witnesses statements on any proposal they put forward on the sentence before that expert testifies. The prosecutor would have to make available to the defence any witness statement that they have on sentence. This is usual practice.”
He said that the defence’s expert witness report and testimony could have an impact on the sentence handed down.
“The court has to look at all the reports and evidence. They (the corrections officer, probation officer and the defence expert witness) may all agree on the same thing with regard to a suitable sentence for the accused.”
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