State challenges accused’s bid to separate Mayville shooting charges from AKA–Tibz trial - IOL

The State has punched a hole in the bid by one of the accused charged with the assassination of Kiernan “AKA” Forbes and Tebello “Tibz” Motsoane to have one of his co-accused tried separately, arguing that the application has been brought under the wrong section of the law.

The State has punched a hole in the bid by one of the accused charged with the assassination of Kiernan “AKA” Forbes and Tebello “Tibz” Motsoane to have one of his co-accused tried separately, arguing that the application has been brought under the wrong section of the law.

The application, brought by first accused Lindokuhle Thabani Mkhwanazi under Section 157(2) of the Criminal Procedure Act (CPA), seeks to have his co-accused, Siyanda Eddie Myeza, tried separately by another court on six charges relating to a separate 2022 shooting in Mayville.

However, the State argues that the application is, in substance, an application for the separation of charges under Section 81 of the CPA, rather than the separation of accused persons under Section 157.

“The relief sought by the accused does not, in substance, concern the separation of the accused persons as contemplated in Section 157 of the CPA. The substance of the application therefore concerns the separation of charges rather than the separation of accused persons,” investigating officer Warrant Officer Kumarasan “Bob” Pillay said in his affidavit.

According to the amended indictment, all seven accused — Mkhwanazi, Lindani Zenzele Ndimande, Myeza, Mziwethemba Gwabeni, Lindokuhle Mhlaliseni Mkhwanazi, and brothers Malusi Dave and Siyabonga Gezani Ndimande — face 11 charges, including two counts of murder and five counts of attempted murder.

Myeza alone faces a further six charges, numbered counts 12 to 17, including two counts of murder and two counts of attempted murder.

The charges stem from a May 6, 2022 shooting on Jan Smuts Highway in Mayville, where Myeza is alleged to have conspired to kill two men, shot and killed them, attempted to kill two others and stolen a white Toyota Etios.

In his application, Mkhwanazi argued that the Mayville charges had nothing to do with him. He said he had spent close to two and a half years in custody without bail and that being forced to sit through evidence relating to those charges would cause financial prejudice and further delay his wait for a verdict.

But Pillay, the investigating officer in the murders of Forbes and Motsoane, who were gunned down on Florida Road in February 2023, said Mkhwanazi’s application — which is supported by all his co-accused — was more appropriately characterised as an application for the separation of charges in terms of Section 81 of the CPA.

Pillay, from the Provincial Murder and Robbery Unit, said the State had previously consulted Sibusiso Dlamini, the instructing attorney for all the accused, about consolidating the Mayville charges with the AKA and Tibz indictment, but Dlamini did not object. 

The application to consolidate the charges was subsequently granted by Judge Siphokazi Jikela, after which the indictment was amended and served on all parties.

“No objection was raised when the amended indictment was served. No objection was raised during the further pre-trial conference held before Judge President Thoba Poyo-Dlwati on June 11, and August 13. All parties confirmed that they were trial ready,” Pillay said.

He further detailed the alleged links between the firearms and the two cases. He said a firearm seized when Myeza was arrested for illegal possession of a firearm in April 2023 was later found to be the same weapon allegedly used in the Forbes and Motsoane killings.

A second firearm linked to the Mayville shooting was also allegedly linked to the main AKA and Tibz case. Pillay said ballistic experts and witnesses expected to testify on the Mayville charges also feature on the State’s witness list for the AKA and Tibz murder charges.

“Given the significant overlap in witnesses, evidence, firearms, in the respective matters, a separation of the trials would result in duplication of evidence, inconvenience to witnesses, increased costs, and the potential for inconsistent findings by different courts,” Pillay said.

The application will be heard on Tuesday morning by Judge Sipunzi.