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State witness kills murder trial


Four murder accused were acquitted after the only one eye-witness was unable to testify due to post-traumatic stress disorder

DISBELIEF: Zamani Mbatha, Sylvester Ephraim, Christelle van der Westhuizen and Tessa Mbothibi acquitted on murder charges in the Northern Cape High Court yesterday. Picture: Soraya Crowie

There were scenes of jubilation and tears of happiness in the Northern Cape High Court yesterday when four murder accused – Zamani Mbatha, Sylvester Ephraim, Christelle van der Westhuizen and Tessa Mbothibi – were acquitted after the only eyewitness to the alleged murder and arson was unable to testify due to post-traumatic stress disorder.

The court closed the case of the State against the accused in terms of Section 342A 3D of the Criminal Procedure Act.

The four were facing charges of theft, murder and arson after they allegedly killed Xolile Macala and then set his body alight on the night of April 30 and May 1 last year.

The trial has limped along at a slow pace and was repeatedly postponed after the eyewitness continuously fainted or became extremely emotional during her testimony.

An application to close the case of the State was brought by the defence yesterday after the State requested a further six-month postponement to allow the witness to continue her mental evaluation.

A previous mental evaluation of the witness found that it would be risky for her to continue to give evidence in the matter.

A medical expert from the West End Hospital, who assessed the witness, Dr Gape Moroe, told the court that the witness showed signs of post-traumatic stress disorder (PTSD) when she was admitted to hospital on June 14 this year.

“The witness showed signs of post-traumatic stress disorder and had signs of depression. She also wanted to commit suicide at the time. The reason she experienced PTSD was because she witnessed a stressful event,” Moroe testified.

He said, upon assessing the witness, he found that the PTSD could be as a result of her witnessing the alleged incident. Answering questions about whether the witness would be able to testify at a future date, Moroe said there is no certainty.

“The witness is currently on antidepressant medication. There has been an improvement in her condition since she started treatment, but she has not fully recovered yet. She will need treatment on a monthly basis after which she will need to be reviewed. However, if there is a high stress event, the witness could relapse,” Moroe stated.

Judge Cecile Williams said that the witness has an unfortunate history of causing the matter to be postponed for long periods of time. “On November 13, 2016 the witness burst into tears when she was cross-examined. On December 1, 2016 the State indicated that the witness was still not okay and was taken from court by an ambulance.

“Since the witness was pregnant at the time, it was suspected that it could be the effects of the pregnancy. The matter was then postponed to January 31, 2017.

“On that day the court again heard that the witness was not ready and the matter was again postponed to June 5 until June 15. On June 5, after just one question posed to her by Mbatha’s attorney, the witness again broke down,” Williams said.

She added that the court then made various alternative arrangements in an attempt to accommodate the witness.

“The State requested that the witness should testify via closed-circuit television. This was after the witness indicated that she was afraid of the accused. In support of this, a social worker also gave testimony in court saying that the witness was willing to give testimony via closed-circuit television.

“I then had to keep in mind that the witness was only two months away from her 18th birthday and granted the request. However, on June 7, 2017, during cross-examination by Mbatha’s lawyer, the witness went into a fit. I was informed the next day that the witness was referred for psychiatric evaluation and on June 15 a report was released regarding the condition of the witness.”

Williams said that the previous evaluation supported the findings of Moroe.

“The doctor who examined the witness said she suffered from PTSD and severe depression after giving birth to her baby. It was also then noted that the witness was suicidal. Testimony from the medical expert supported that.

“Moroe said the witness was admitted to the hospital from June 14 until August 18,” the judge said.

She added that the postponement of the case did not concern the court, but the witness had indicated to the doctor that she was unwilling to continue her testimony.

“I can accept that the witness cannot continue with her testimony today or in a few months time, but I am concerned that she has indicated that she does not want to testify. The doctor also stated it would be difficult to predict whether she would ever be able to do so. It appears her inability to testify stems more from her unwillingness to do so,” she said.

Williams added that it was also not in the interests of justice for the accused to remain in custody.

“The accused have been in custody since May 23, 2017, which is six months ago. A further postponement until March next year will result in the accused being in custody for 22 months. There is also no indication whether the witness will testify then.

“A previous application for bail on new facts by the accused was also denied by the State and the State said it will oppose another application should it be bought,” Williams said.

Because the State only had one witness to support its case, the testimony of the witness held no weight.

“The evidence of the witness was not tested as the witness did not complete her evidence. The cross-examination was only on the evidence against accused one and that was never completed.

“The case of the State is therefore closed and accused one is acquitted on all charges. Accused two, three, and four are found not guilty on all charges as there is no case against them,” Williams concluded.