16 Feb 2022

Broadburst Magistrate Gaseitsewe Tonoki  has set March 7 as the date for the delivery of her ruling on the status of the bail application by the accused in the G4S Mogoditshane cash in transit heist case.

The four accused in the case, 42-year-old Mothusi Motomela of Mochudi, 38-year-old Thapelo Lekobe of Mmadinare as well as two South African nationals Mzwandile Mazibuko (25) and Ntholephi Ntshalintshali (29) are charged with ambushing a G4S cash in transit vehicle at Mogoditshane in October 2021, allegedly stealing P2 million, a pistol and an AK 47 weapon.

Recently, High Court judge, Justice Jennifer Dube dismissed an application lodged by counsel for the first two accused, Mr Olihile Mantswe leading to the prosecution in the case before the Broadhurst Magistrates’ Court to argue that no further bail hearing was necessary since a higher court had already made a ruling on the issue.

Mr Mantswe argued that the High Court bail decision did not preclude them from applying for bail at the magistrate’s court, which he said was a competent authority to make a determination on the matter.

He said it would be ‘outright wrong, having not foundation in our law,’ to deny the defence an opportunity to apply for bail, and challenged the prosecution to ‘point to a law or court ruling to the effect that a trial court cannot entertain a bail application when the High Court has already dismissed one.’

He further said the passage of time from the accused’s first remand in custody on October 15 meant the circumstances of initially denying them bail had lapsed and the delay of the state in carrying out investigations was not a valid enough reason for not granting bail.

Mr Mantswe also criticised the treatment of the accused in court, saying it was wrong for them to enter the courtroom in chains and leg irons. 

He said accused persons wear uniform in jail but civilian clothing in court precisely because before competent courts they were presumed innocent until proven guilty, but the state was working to prejudice the accused by presenting an image of them before the court as hardened criminals.

On the other hand Mr Farai Nhende, attorney for the third and fourth accused, Mazibuko and Ntshalintshali, said his clients were in the process of completing their filing for bail application, a process that he said had been challenging, given their personal circumstances as foreign nationals who had not yet secured sureties.

Appearing for the state, attorney Mr Farayi Mahwite said since the High Court had already duly served judgment on the bail issue recently, if the lower court proceeded on the matter there could be parallel judgment. He said the magistrates court was bound by that judgment, pointing to Section 111 of the Criminal Procedure and Evidence Act dealing with the power to admit to bail, nature of bail and provision clear, stating that it was not open to the litigant to choose.

While affirming that the state would assess how accused persons were treated when  escorted to court, attorney Mahwite stated that the state did not intend any prejudice to befall any accused persons, including one of the accused in the case who already had a different criminal conviction.

Magistrate Tonoki ruled that since the matter regarding the liberty of persons and their right to bail application, was a sensitive one she would need time to familiarise herself with Judge Dube’s recent High Court ruling then make a determination on the matter.

She instructed that her court be served with Judge Dube’s ruling; that before the end of this week, the state should avail further particulars of the case to the defence; and that on the morning of Monday, March 7 she would deliver a ruling on whether the accused can proceed to make a fresh bail application before her court.

 In the meantime the accused were remanded in custody. Ends