This week, the State was dealt a blow when its application to appeal the granting of bail to nine murder-accused was refused in the Western Cape High Court. 

Nine of the 11 accused of the murder of e-hailing driver Abongile Mafalala were granted bail by the high court on grounds that they have been in detention for three years while their trial is pending.

The nine accused, who may not be named or identified by pictures as per a previous court order, were each released on R500 bail. The accused eight in the matter did not make a bail application as his bail had been withdrawn during a pre-trial hearing earlier this year. Accused 9 had previously been released on warning.

They face charges of three counts of murder, robbery with aggravating circumstances, and malicious injury to property.

National Prosecuting Authority spokesperson, Eric Ntabazalila said: “The State is busy studying the judgment with a view to making a decision.”

High Court Judge Gayaat Da Silva-Salie said the matter came before her on a pre-trial roll at which point the accused had been in custody since their arrest. 

Judge Da Silva-Salie’s decision to grant bail to the accused was motivated by the prolonged and unjustified pre-trial detention of nearly three years, coupled with the State’s failure to disclose crucial CCTV footage and to provide full further particulars.

“The matter initially came before me on the criminal pre-trial roll of 15 November 2024. During the hearing of this matter, I indicated my concern that the accused had been in custody for almost three years while the trial remained unallocated for hearing. The accused were denied bail during a bail application before the Wynberg Magistrate’s Court in 2022, whereafter the matter was transferred to this court. 

“I enquired from the State whether it would consider agreeing to bail subject to stringent conditions while the matter was pending trial, or as may be further directed by the court. Counsel for the accused indicated that several enquiries had been made for the High Court to reconsider bail and that footage requested from the State had not been forthcoming, leaving the accused unable to prepare for trial and in custody indefinitely. During a conference scheduled a week or so later, counsel indicated that they were unable to come to an agreement as the State was not amenable to agreeing to bail,” Da Silva-Salie said.

The State appealed the High Court’s decision, arguing that the court misdirected itself after it applied the bail test incorrectly. However, Judge Da Silva-Salie said that she was of the view that grounds existed to reconsider bail due to the developments, which amounted to new facts or changed circumstances post the earlier bail refusal in the lower court.

In their arguments to refuse bail, the State emphasised the seriousness of the charges and contended that the prejudice of pre-trial detention is outweighed by public safety considerations.

“My intervention was mandated to ensure that the accused’s constitutional rights were not rendered nugatory by prolonged inaction, and once the issue was raised, the defence expressly sought reconsideration of bail. 

“In this case, the prolonged and unjustified pre-trial detention of nearly three years, coupled with the State’s failure to disclose crucial CCTV footage and to provide full further particulars, constituted exceptional circumstances of constitutional dimension. I regarded these developments — occurring after the earlier refusal of bail — as new facts or changed circumstances that weighed heavily in favour of reconsidering bail,” said Judge Da Silva-Salie.

Mafalala was violently killed in a mob attack on May 31, 2022, spurred by Parkwood residents after he was suspected of kidnapping while he was waiting for his next trip.

Hundreds of residents came out, beat, and stoned Mafalala and then set him and his vehicle, a Toyota Avanza, alight on the open field next to the M5.

It was later revealed that Mafalala was a victim of robbery moments before his murder, and the reports of an alleged kidnapping were fake.

 chevon.booysen@inl.co.za

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