Excitement and happiness were felt as the Durban High Court, on Monday, dismissed an application to have a lead prosecutor removed in a murder trial of two ANC members.
In the murder case of ANC activist Mzukisi Nyanga and ANC candidate Siyabonga Mkhize from ward 101, the defence filed an application last week to have KwaZulu-Natal deputy director of public prosecutions advocate Lawrence Gcaba removed from the case as a prosecutor.
Gcaba is also a lead prosecutor in the murder case of rapper Kiernan “AKA” Forbes and his friend Tebello “Tibz” Motsoane.
Defence counsel Sibusiso Dlamini for accused two Sandile Mzizi, said this application was based on a letter written to the National Director of Public Prosecutions, by Professor Mary de Haas, a veteran violence and police monitor.
This letter by De Haas is calling for the disbandment of the national political task team. The team investigates political killings and assassinations of traditional leaders in KwaZulu-Natal and it was established in 2018.
The letter, which was briefly read in court by Judge W Harrison, said this team misuses its power.
When Dlamini was given a chance to address the court, he said he wanted to start with De Haas’s letter, but Harrison said they should start with the basis of the application, which stated that Gcaba and any other prosecutor working with the task team could be biased.
He asked him about the word ‘might’ and what the Supreme Court of Appeals said about it.
As Dlamini was trying to explain, Harrison quickly provided him with an answer. Harrison, who came with books in the court and his assessor, schooled Dlamini about bringing hearsay evidence to the court. As he opened the books, he cited a number of case laws.
He referred to certain paragraphs in the letter, in which De Haas said she was in no position to judge the innocence or guilt of the team. Harrison disagreed, but Dlamini claimed that was aimed at this issue.
Mzizi said Gcaba vehemently opposed his bail applications.
“Mr Gcaba did not hear the bail application, a magistrate heard the application, (it was) was refused. Your client appealed that decision to the high court. What happened to it? It was dismissed. He applied for bail based on new facts but was refused. This demonstrates that the system is working,” said Judge Harrison.
Harrison, who smiled slightly while appearing to scold Dlamini, said three judicial officers were making decisions in this case and that they could not come close to interference by Gcaba.
He taught him about the job of a prosecutor while quoting a case law.
“They often carry out their prosecutorial functions vigorously and zealously. A prosecutor’s role in a criminal prosecution, therefore, makes it inevitable that he or she would be perceived to be biased. Prosecutors usually approach criminal prosecutions with a view, sometimes a very strong view, that accused persons are guilty. That is permissible,” he read.
Judge Harrison asked Dlamini if he wanted the court to rely on a letter by De Haas, which also accused the team of protecting politicians and not making arrests.
“Where are we Mr Dlamini?” he asked.
Dlamini said: “We are in court my lord,” he said.
Harrison told Dlamini that the courts make their decisions independently.
“We don’t trial cases based on the public opinions. When I put on these robes, I don’t care what any politician says. I listen to the evidence. You are trying to bring hearsay, double hearsay into this court and I am telling you that this is inadmissible,” he said.
As the gallery got excited and loudly applauded Harrison, he said to show that courts are not influenced by the public, if the gallery makes a noise he will clear it.
During this session, Mzizi sat straight and listened carefully to what was being said.
When Gcaba was asked if he wanted to make any submissions, he said no.
After Harrison dismissed the application and said he would expand more on it during his judgement, a short adjournment was taken. The people in the gallery kept on praising Harrison. Members of the task team present in court were all smiles.
Mzizi is accused alongside Nkosinathi Emmanuel Ngcobo, Mkhipheni Mzimuni Ngiba, a former ANC ward 101 councillor, Sifiso Vincent Mlondo, and Phathesakhe Ngiba. They allegedly gunned down Mkhize and Nyanga in October 2021 before the local government elections.