State challenges legal basis for separating accused in AKA-Tibz murder trial - IOL

In the Durban High court on Tuesday, the State vehemently argued that there was no provision in law or case law giving a judge the power to separate charges under Section 157(2) of the Criminal Procedure Act, as the defence insists, in the murder trial of Kiernan “AKA” Forbes and Tebello “Tibz” Motsoane.

In the Durban High court on Tuesday, the State vehemently argued that there was no provision in law or case law giving a judge the power to separate charges under Section 157(2) of the Criminal Procedure Act, as the defence insists, in the murder trial of Kiernan “AKA” Forbes and Tebello “Tibz” Motsoane.

The legal battle played out as Judge Nomfundo Sipunzi heard an application brought by first accused Lindokuhle Thabani Mkhwanazi, who wants six charges against his co-accused, Siyanda Eddie Myeza, to be tried separately before another court.

The application was brought ahead of the trial of the seven men accused of the February 2023 murders of Forbes and Motsoane, who were gunned down on Florida Road.

The accused are Mkhwanazi, Lindani Zenzele Ndimande, Myeza, Mziwethemba Gwabeni, Lindokuhle Mhlaliseni Mkhwanazi and brothers Malusi Dave and Siyabonga Gezani Ndimande.

Mkhwanazi argued in his application that it would prejudice him to sit through the State’s evidence on the six charges faced only by Myeza.

Those 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.

The remaining accused face 11 charges, including the murders of Forbes and Motsoane and conspiracy to commit murder.

However, KwaZulu-Natal Deputy Director of Public Prosecutions Advocate Lawrence Gcaba said Myeza faces 17 charges in total, including the charges relating to the murders of Forbes and Motsoane. He said Myeza has already pleaded not guilty to all charges against him.

Gcaba argued that the defence had relied on the wrong section of the law in bringing its application.

He said Section 157 of the Criminal Procedure Act deals with the separation of accused persons, meaning that if the application were granted under that provision, Myeza would effectively be removed from the current trial and face his charges separately before another court.

“The wrong law upon which the application is made makes it enough for the court to dismiss,” Gcaba said.

“Is that your interpretation of the section?” Judge Sipunzi asked.

Gcaba said when the State consolidated the charges and subsequently amended the indictment, it relied on Section 81 of the Criminal Procedure Act, which deals with the separation and joining of charges.

He argued that this was the provision the defence should have relied upon in seeking to have Myeza’s six additional charges separated from the main trial.

When Sipunzi asked Gcaba how the State would have responded had the defence brought the application under Section 81, he said he did not want to speculate.

Addressing the alleged prejudice to Mkhwanazi, Gcaba said the State would spend no more than three to four days presenting evidence relating to Myeza’s additional charges.

He argued that the greater prejudice would be suffered by the State if the application succeeded because witnesses who testify in the current trial would potentially have to repeat their evidence in a separate trial against Myeza.

In response, Mkhwanazi’s counsel advocate Simphiwe Mlotshwa, argued that the State’s interpretation appeared to strip the court of the powers it possesses.

“The court can use its discretion,” Mlotshwa said.

The matter was stood down, with Sipunzi expected to deliver her ruling later on Tuesday.