By Johnathan Paoli
Defence lawyers for three of the accused in the Emmanuel Mbense murder case have described the State’s case as “extremely weak”, arguing that prosecutors have relied on speculation and allegations rather than evidence showing how the charges will ultimately be proved.
Appearing in the Brakpan Magistrate’s Court on Tuesday for closing arguments in the bail application, Advocate Jan van Heerden, representing former police officer Bhekokwakhe Sibande, argued that the State had failed to establish that his client was one of two uniformed police officers who allegedly entered Mbense’s home.
“Your Worship, it’s my respectful submission that the state case against applicant two [Sibande] relies heavily on speculation, unsupported inferences and flawed logic rather than verifiable evidence,” Van Heerden said.
“Marius van der Merwe [Witness D] asserted that they were from Brakpan without providing any explanatory basis for this conclusion and he never identified the two un-uniformed officers at any stage. No other witnesses placed applicant two inside the house,” he added.
Van Heerden said Sibande and the late Constable Mzwakhe Khoza had responded to a distress call from colleagues while off duty and arrived at the scene in a marked police vehicle, but were dressed in plain clothes.
He argued that Sibande’s version that he and Khoza never entered the house had not been contradicted.
“The big problem for the State as far as applicant no. 2’s involvement is concerned, Your Worship, is the question, when did he arrive there? Can it be said that he was one of the two police officials that arrived was under Fritz in full uniform or not? It is my respectful submission, Your Worship, that the answer to those questions should be no,” he said.
Van Heerden also argued that there was no evidence that Sibande had been involved in alleged planning or discussions around a purported R500,000 payment, and that his name did not feature in subsequent meetings allegedly held at Carnival City.
Advocate Crystal Keevy, representing EMPD officer Adrian MacKenzie and former EMPD officer Kersha-Leigh Stols, similarly challenged the State’s reliance on inference and common purpose.
Keevy argued that the two accused should be treated as first offenders for purposes of the bail application, despite MacKenzie and Stols facing a separate pending case relating to precious stones.
“With reference to the pending case, the pending case occurred in 2023. It is common cause that this incident occurred in the year 2022, and, as such, it is my respectful submission that for purposes of this bail application, they should be regarded as a first offender,” she said.
Keevy accepted that MacKenzie and Stols had been at Mbense’s premises, but argued that their presence did not establish that they knew Mbense was inside the house or that they had participated in his killing.
She also disputed the State’s suggestion that the two had been motivated by a promised 10% share of allegedly stolen copper.
Keevy said that, because Stols and MacKenzie were EMPD officers and not security employees, the alleged monetary incentive did not necessarily apply to them.
“It therefore stands to reason, Your Worship, that this 10% that is being alleged security companies generally recover cannot find application to applicants number three and four,” she said.
Keevy argued there was also no evidence that MacKenzie or Stols knew Mbense was in the room or entered it.
For former SAPS Flying Squad member Juan-Maree Eksteen, Advocate Christo van As argued that the State had failed to properly set out how it intended to prove its allegations.
“The state has to apprise an applicant with the case he or she faces. I deemed it necessary to elaborate on that Your Worship. The state relied or the state furnished the defence with a charge sheet setting out the charges the applicants were facing,” Van As said.
“An affidavit compiled by senior [IPID] investigator [Nomsa] Masuku furnished the applicants with additional facts of how the alleged offences would have been perpetrated. Miss Masuku however failed to provide this honourable court with the evidence of how the state intended to prove these allegations. She on various occasions during cross-examination responded on questions posed by stating that the information will be revealed during the trial,” he added.
Van As also rejected the State’s suggestion that Eksteen posed a flight risk because she had worked temporarily in Dubai.
He said she had returned to South Africa and was prepared to surrender her passport, while bail conditions could address any concerns about her leaving the country.
In his final submission, Van As said the State had failed to provide sufficient evidence to support its allegations against Eksteen.
“I respectfully contend that if the state was very serious or had any intent of challenging the versions of the applicant, they had to do so by means of presenting credible evidence, not simple adverments, but to at least show the Honourable Court what is the basis on which the state relies to prove the case of the state. That has not been done. Certain allegations were made, charges were presented, and to say what the state will allege, but how it will be proved, that was not done. That is my submission, Your Worship,” Van As said.
The two other accused are private security company owner Cobus Janse van Rensburg and suspended EMPD deputy chief Julius Mkhwanazi.
All five accused face charges including murder, robbery and defeating the ends of justice.
Mbense was allegedly dumped in Spaarwater Dam in Duduza, near Nigel, with the State alleging that Mkhwanazi instructed that his body be disposed of there.
Magistrate Collen Mashego brought the bail proceedings to an end, saying the court would not deliver an “extratemporal” judgment.
Judgment was postponed until next Tuesday.
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