Cape Town. 130306. Thani Maqubela appears at highcourt. Again she insists on taking pictures of the photographer as well. Picture COURTNEY AFRICA

Cape Town - Thandi Maqubela’s behaviour after the death of her husband, Acting Judge Patrick Maqubela, was “inconsistent with innocence”, Judge John Murphy found on Thursday in the Western Cape High Court.

Murphy ruled against an application for a discharge involving Maqubela, accused of the murder of her husband, and of fraud and forgery, and Vela Mabena, accused of the acting judge’s murder.

Murphy said that Maqubela’s behaviour after her husband’s death was “inconsistent with innocence” and if Mabena was granted a discharge, it would compromise the proper administration of justice.

Patrick Maqubela’s body was discovered in the main bedroom of his Bantry Bay flat on June 7, 2009, two days after the State alleges he was murdered by Maqubela and Mabena, who allegedly suffocated him, possibly using cling film.

Marius Broeksma, for Maqubela, yesterday said he believed there were two “fatal flaws” in the State’s case.

He said these were :

* That a forensic pathologist, Sipho Mfolozi, who conducted a post-mortem on Patrick Maqubela’s body, had been unable to establish the cause of his death.

* The value of evidence in the form of the cling film found at the scene, and which could have been used to suffocate Patrick Maqubela, was questionable as the results of tests done on it were confusing.

Randall Titus, for Mabena, said none of the State’s 46 exhibits bore the DNA of Mabena, and while Mabena had been at Patrick Maqubela’s complex in the time frame within which he may have died, he had been “at the wrong place at the wrong time”.

Murphy said the State’s medical evidence of the cause of death was less than satisfactory and there was a possibility, not probability, that Patrick Maqubela was suffocated.

He said when it came to the cause of his death, the State had built its case most strongly on cellphone use, which showed where people were and at what time.

Cellphone records indicated Maqubela may have been aware of her husband’s death and tried to conceal this.

In a statement to police, the judge said, Maqubela had said her husband left his complex at 6am to attend a “mysterious meeting with unknown persons” at an adjacent hotel.

He had later not gone to work, had made no attempts to contact colleagues to say he would be absent and had then gone back to his apartment, where he died of a heart attack.

Murphy said this version “carries an air of improbability”. “It bolster’s the State’s submission (that Maqubela has a case to answer to).”

Murphy found evidence against Mabena “less compelling”. But he said shortly before and after Patrick Maqubela’s death, there had been a spike in cellphone communication between Mabena and Maqubela.

After Patrick Maqubela’s death, Mabena had sent her an SMS offering condolences, even though there were no previous SMSes about his death. “The unusual timing and content of communication calls for an explanation,” Murphy said.

The matter was postponed to Tuesday.

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Cape Times