Killed over a cellphone

MURDER accused Mbubanzi Zwakala, a 48-year-old Warrant Officer employed at the SANDF, was denied bail this week in a case where the court believes that matric pupil Amogelang Assegaai, 19, was senselessly killed in cold blood over a cellphone.

Assegaai was shot outside his home in Impala Street, Verwoerdpark on October 23 and died on the scene after sustaining internal injuries.

Zwakala, who is the father of five children, was arrested after a .9mm pistol was found under his bed, while a .9mm cartridge was found at the scene of the crime.

During his bail hearing in the Kimberley Magistrate’s Court this week, it was indicated that while Zwakala did not have any previous convictions or pending cases, he was fined R3,500 at the Lohatla military base in 2013 for common assault.

Zwakala informed the court in an affidavit that he had no relationship with the witnesses or the deceased.

He indicated that he had handed himself over to the police following the shooting but had returned home, as no case had been registered at the time.

He stated that he was prepared to pay bail of R2,000.

Zwakala’s son was apparently assaulted after he and some friends had gatecrashed a party at Assegaai’s home on October 21.

Zwakala’s legal representative, Riaan Bode, pointed out that his client could have acted in self-defence.

“It could have been a warning shot or it could have been an accident. The prosecution should not overrule the possibility of culpable homicide. There is no evidence that my client will evade his trial. The so-called community uproar could be as a result of misinformation and hearsay,” said Bode.

He believed that witnesses would not change their evidence as statements had already been taken.

“If they change their evidence, witnesses can be charged with perjury and defeating the ends of justice. The ballistic reports and other outstanding forensic analysis may take time,” he added.

The investigating officer, John Ross Webb, said that Zwakala had visited Assegaai’s home, along with three other persons, in search of his son’s cellphone.

“The phone was not there when they went to the deceased’s house on October 23 at 3pm and arrangements were made to collect it at a later stage,” Webb told the court.

“He spoke to a neighbour and told her that he was well-known in Kimberley and Galeshewe and that he would make Kimberley very small for the person who had assaulted his son. The witness related that Zwakala was angry.”

Webb added that Zwakala returned to the house at around 7pm in a green Toyota Cressida.

“He collected a witness in order to direct him to the home of the deceased as he could not remember the address. He was sitting in the front passenger seat while another person was driving. He called the deceased to come out of the house and when he handed the cellphone over to him, he passed it to his son. The deceased was standing in front of his house when a gunshot went off.

“The driver switched on the ignition. Zwakala and two witnesses saw the deceased fall to the ground while he was holding his shoulder and screaming for help. Zwakala and a witness jumped into the motor vehicle and drove off. As they were driving back to Zwakala’s house, the witness looked back and saw the deceased lying on the ground, while someone was attending to him.”

Webb stated that one of the witnesses pointed out that there was no argument or fight that occurred between Zwakala and Assegaai.

He told the court that the two witnesses who went to Assegaai’s house on October 23 claimed that they did not know the identities of the two adult males who accompanied them in the car.

“They said that they heard a shot and saw the deceased collapsing to the ground but did not see who discharged the firearm.”

He added that the post-mortem results indicated that the bullet had entered Assegaai’s left shoulder.

“It damaged a muscle in his spinal cord and travelled through both lungs. About two-thirds of his blood filled his chest cavity due to internal bleeding as there was no exit wound.”

Webb said that he noticed a green Toyota Cressida parked at Zwakala’s home when he went to search for the firearm.

“Upon inspection, the safe - where Zwakala had informed the police the firearm was kept - was found to be empty. Zwakala told another witness to check under the bed, where a .9mm pistol was found. It was confirmed that it belonged to him.

“The pistol contained eight rounds of ammunition while the magazine can hold up to nine rounds. A .9mm cartridge was found on the scene. The applicant was arrested on October 24 at about 11.20pm.”

Webb added that the pistol had been sent for ballistic and fingerprint testing.

He stated that Zwakala knew the addresses of the witnesses.

“The witnesses who have agreed to testify in the trial may be influenced or intimidated if bail is granted. The list of witnesses includes his son and his son’s friend, who lives a few houses away from them. He never denied that his son was at the scene of the crime.

“The family are living in fear following the incident where the deceased was killed in cold blood.”

Webb said that a petition, with 2,694 signatories, called on the court not to grant the accused bail.

“The incident has caused uproar in the community and Zwakala’s safety cannot be guaranteed if he is released.”

Webb also handed in a letter from Kimberley Boys’ High School that warned that Zwakala could face retaliation if he was released on bail.

The letter pointed out that Assegaai’s death had deeply affected his peers, who started writing their National Senior Certificate exams this week.

State prosecutor Matau Khonkhobe stated that as a trained SANDF member, Zwakala should have contacted the police and emergency services following the shooting.

“His son’s cellphone was lost during a fight that broke out on October 21, when he and his friends arrived at a party, uninvited, at the home of the deceased. The cellphone was later picked up in the street by a neighbour and handed to one of the partygoers.”

Khonkhobe believes that the murder was calculated and premeditated.

“The accused was angry and was under the impression that the deceased knew the whereabouts of his son’s cellphone. He went home and returned to the house that evening, where he lured the deceased out of the house. It was a man against a boy. Zwakala planned his escape, where he fled the scene to avoid detection. He never knocked on the door or confronted the deceased’s parents. He left the boy to die and went home instead of calling for help.”

Khonkhobe pointed out that if convicted, Zwakala could be sentenced to life imprisonment.

“Therefore, he may evade his trial and undermine the justice system. He lied about storing his personal pistol under his bed. The minor witnesses are most likely to be influenced and intimidated.”

Magistrate André Williams stated that there were no exceptional circumstances to justify Zwakala’s release from custody.

He believed that the juvenile witnesses who were on the scene of the shooting were not entirely honest when they claimed not to have seen a firearm or anyone firing a shot.

“It is common cause that Zwakala owns a firearm and that his son was on the scene. He decided to take his pistol with him to the home of the deceased. As a parent, he should have spoken to the parent of the deceased, who was a scholar and a child, to obtain the cellphone.”

Williams pointed out that Assegaai was defenceless as he was not carrying any weapon.

“There is no evidence that Zwakala was under any form of attack. The shot was fired after the deceased handed over the cellphone.”

He stated that Zwakala was trained in using a firearm.

“All parties were standing when the deceased was deliberately shot. The applicant had to raise the firearm in order to shoot him in the shoulder. The deceased was unable to breathe after his lungs were filled with blood. The life of a young man, who was in the prime of his life, was taken over a cellphone while he was supposed to sit for his final exams this week. His parents had aspirations for him and instead they have to bury their son this weekend.”

The case was postponed until December 7 for further investigation and Zwakala will remain in custody.