SANDF man accused of killing matric pupil granted bail

MURDER accused Mbubanzi Zwakala, 48, an SANDF warrant officer who is accused of fatally shooting Kimberley Boys’ High School pupil Amogelang Assegaai, 19, outside his home in Verwoerdpark, has been granted bail of R10,000.

The incident took place on October 1, 2022, when Zwakala’s son and a group of his friends arrived at Assegaai’s home uninvited.

A brawl followed over Zwakala’s son’s cellphone that was lost during the house party.

A neighbour found the phone and gave it to one of the friends attending the party.

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Zwakala, his son and three other persons drove to Assegaai's house to collect the cellphone on October 3, 2022, where he apparently threatened that he would find the people who assaulted his son.

He returned to the house at around 8pm and he beckoned to Assegaai outside.

Upon handing over the cellphone, Assegaai was shot in the shoulder and died on the scene.

Zwakala sped off in his vehicle without assisting Assegaai or calling for help.

Zwakala, who intends to plead not guilty to the charges, lodged an appeal in the Northern Cape High Court after he was denied bail in the Kimberley Magistrate’s Court in November last year.

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He submitted that he had a right to personal freedom and that both he and his family would suffer prejudice if he remained in custody.

The State maintained that Zwakala had failed to show any exceptional circumstances permitting his release on bail and that there was strong evidence linking him to the crime.

Handing down judgment on April 14, Judge Albert Nxumalo stated that every accused had the right to be presumed innocent until proven guilty, even in the face of strong evidence.

He pointed out that a bail application did not deal with the question of guilt.

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“Every accused person has a right to a fair trial, which includes the right to be presumed innocent, to adduce and challenge evidence.”

He added that the refusal of bail in order to protect society was only justifiable in “extreme circumstances”.

“Under our constitutional democracy, every accused person has a fundamental right to be released from detention if the interests of justice permit, subject to reasonable conditions.”

Nxumalo indicated that it was improper during a bail application to pronounce on whether the offence was premeditated or planned.

“The investigating officer, under cross-examination, conceded that he could not exclude the possibility that the shot went off by accident, that it was a warning shot, or that the accused acted in self-defence, since he had no available evidence to the contrary.

"He also confirmed that he does not know where the media initially got the information about a “drive-by shooting".

He stated that Zwakala had promised not to endanger the safety of the public or any person if he was released on bail.

“Even though the investigating officer, John Ross Webb, testified that the witnesses are open to intimidation, he conceded that there was no evidence that Zwakala would interfere with the ongoing investigation or influence potential witnesses.

“Webb testified that witnesses had already given statements and that he had no reason to believe that they would change their version.”

Nxumalo added that the presumption that Zwakala might evade his trial and could interfere with witnesses was nothing more than a “possibility and a probability”.

“To the contrary, the evidence of Zwakala was that he has a stable job as a soldier in the national defence force of the Republic and all his family members and assets are within jurisdiction.”

He acknowledged that the use of a firearm and the warning issued that he was "well known in Kimberley and that he will make Kimberley small for the persons who assaulted his son" was a threat of violence.

Nxumalo indicated that Zwakala was facing “very serious charges” where he carried a firearm to the home of the deceased.

“There is no evidence that there was any argument or any attack on Zwakala. The only inference that the court can draw is that once the cellphone was handed over, the deceased was deliberately shot."

He admitted that the matter was of great public interest, where the community was shocked and outraged by the commission of the offence.

Nxumalo was not convinced that the release of the accused would result in public disorder or endanger the safety of the accused.

“The community petition only called upon it to attend the bail hearing and stand in solidarity with the Assegaai family in fighting for justice for Amogelang. The letter from the school only requested that the accused should not be released on bail before Assegaai's funeral or before Grade 12 pupils had written their final examinations as it could trigger them in different ways. The deceased's funeral and the said examinations have since come to pass.”

He stated further that Zwakala was willing to relocate to the army support base at Diskobolos where he would work in the accounting department.

“His supervisor, who is a colonel in the SANDF, is prepared to take him in from the date of his bail until the matter is finalised.

"Counsel intimated that Zwakala only had one firearm that was impounded for ballistic tests. He will not be issued with a firearm and will not leave the army base without the written permission of the investigating officer.”

Nxumalo indicated that Zwakala had been incarcerated for about five months since his arrest.

“Zwakala may suffer financial loss and lose his salary and employment if remains detained. He is married and has five children. What can also not be undermined for the purposes of bail are his emotional, family, community and occupational ties and the assets held by him in Kimberley."

Nxumalo added that Zwakala did not possess any travel documents and did not have any family ties abroad.

He believed that the two juvenile witnesses on the scene were not entirely honest when they testified about what they had seen during the incident.

"Some of them must have seen a firearm being produced and a shot being fired."

Nxumalo explained that the court had erred in "over-emphasising the seriousness of the offence” without weighing up the interests of the appellant's right to his personal freedom and "in particular the prejudice that he would likely suffer".

Conditions attached to the bail include prohibiting the accused from approaching, contacting, communicating, intimidating any witness or interfering with any evidence.

Zwakala was instructed not to leave the army base or district for the duration of the trial without written permission from the investigating officer.

Nxumalo ordered Zwakala to hand over all firearms, ammunition, passports and travel documents to the investigating officer and to attend all court dates.

Zwakala was represented by advocate Sakkie Nel, while State advocate Sue-Ann Weyers-Gericke from the Directorate of Public Prosecutions appeared on behalf of the State.