Durban — Without knowing the basis for the State alleging that a murder-accused husband had planned the killing, his defence could not forge ahead with his bail application in the Pinetown Magistrate’s Court on Tuesday.
South African National Defence Force (SANDF) member Lwanda Mxolisi Zungu is accused of shooting and killing his wife Tania Msane Zungu in their Pinetown home while his two children and their grandmother Gwen Msane were in the house.
After that, he ran away and later handed himself to the police.
“Premeditation was just added today after the accused has made three appearances in court and three months after his arrest. It was never put to him that he faced premeditated murder at his first appearance, it comes as a surprise today. There’s no certificate from the Director of Public Prosecution (DPP) that the accused is charged with an offence that falls under Schedule 6 within the ambit of the Criminal Procedure Act,” said Zungu’s defence Advocate Muzi Mzelemu.
The fact that Zungu faces premeditated murder, means that the bail application falls within the ambit of Schedule 6 of the Criminal Procedure Act as opposed to just a murder which falls under Schedule 5.
Schedule 5 bail applications call for the accused to provide reasons and proof to the court that their release on bail is in the interest of justice whereas in a Schedule 6 bail application above proving interest of justice, an accused has to present the court with exceptional and compelling circumstances that permit their release on bail.
“When did the State decide that this was a Schedule 6 bail application, this has serious implications on the applicant who now has a further onus to show that there are exceptional circumstances permitting his release on bail. What is this charge founded on, that information needs to be placed before the court ahead of any ruling or finding that this is indeed a Schedule 6 bail application, especially in the absence of the certificate in this regard from the DPP,” said Mzelemu.
He said without this information the bail application would be extremely prejudicial against the accused.
“He is expected to give evidence in his bail application without knowing the basis of this premeditation where the State has provided minimum details in relation to this charge.”
In his argument, Mzelemu made reference to case law that spoke of the fact that an indictment contained a summary of facts and compared it to a charge sheet, adding that these two were documents completed by the prosecution for the accused to be aware of charges levelled against them which included evidence the State was going to rely on.
State Prosecutor Ehud-Jadon Francke apologised to the defence and the court for amending the charge sheet on Tuesday morning.
He said that the State believed that the accused had been sufficiently informed of the charge against him adding that premeditation did not determine the charge but rather spoke to the sentence that was handed down.
“From the charge sheet, the accused was informed of the charge against him that he is alleged to have killed his wife, it includes the date and the time and it even specifies that he is charged under the provisions Domestic Violence Act. I agree with the defence that if a schedule is disputed in a matter it can be resolved by way of a certificate from the DPP.”
Francke said the State would endeavour to provide such a certificate Wednesday (today).
The matter was adjourned to Wednesday for a possible ruling on the bail application schedule and possible bail application.
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