Two men facing charges of possession of unlicensed firearms and ammunition were found not guilty and discharged in the Grahamstown Regional Court on Friday 31 October.
Two men facing charges of possession of unlicensed firearms and ammunition were found not guilty and discharged in the Grahamstown Regional Court on Friday 31 October.
Thembile Ngqoyiya, Nthabeleng Charles and Thabo 'Gadaffi' Madikane were accused of plotting to free a prisoner under armed guard at Settlers Hospital in Grahamstown earlier this year.
Magistrate Ronny Lesele discharged Ngqoyiya on Wednesday 29 October.
This came after defence attorney Tobile Bara applied for the release of all three men in terms of section 174 Act 51/1977 of the Criminal Procedures Act.
The Act states, "If, at the close of the case for the prosecution at any trial, the court is of the opinion that there is no evidence that the accused committed the offence referred to in the charge or any offence of which he may be convicted on the charge, it may return a verdict of not guilty."
The three men were arrested on 24 January near Grahamstown after police received a tip-off that they were en route to free a patient at Settlers Hospital.
The informant told police that the occupants of a white Kia Rio were on their way to Settlers to disarm police officers and free a man under police guard there.
In court Lesele said according to Warrant Officer Jacques Joubert the only reason Ngqoyiya was arrested was because he was driving the car on the night in question.
Lesele said that Charles, on the other hand, would have to answer to the allegations of telling police that there was a firearm under the seat, while Madikane was alleged to be in possession of a firearm before being disarmed by Joubert.
However on Friday 31 October, Lesele also found Charles and Madikane not guilty of possession of illegal firearms and ammunition and discharged them.
Lesele said he was impressed by Joubert and Sergeant Nelia Carf's testimonies as far as their bravery on the night in question; however, the magistrate was quick to point out that he observed contradictions in their testimonies.
Lesele pointed out the fact that in her testimony Carf said she had not seen a firearm fall while Joubert and Madikane were struggling.
She said she was only alerted to it once Joubert shouted, "Gun! Gun! Gun!"
In her statement, however, she indicated that she had seen the firearm on the seat after the struggle.
He also said it was clear from the evidence of the three police officers (Joubert, Carf and Warrant Officer Percival Benn) who were state witnesses that on the night in question that the men were not informed of their rights prior to the recovery of the firearms in the vehicle.
Lesele said even if he were to accept that the accused had confirmed that the gun belonged to him, it would be unlawful to accept that evidence according to the Constitution, as their rights would have been infringed.
The magistrate also found it improbable that Madikane did not exit the vehicle when he had a cocked gun pointed at him, and to under those circumstances try to take out a gun from his belt.
"Would any right thinking person do that?" Lesele asked, before saying he did not think so.
Lesele said there was doubt in his mind about the presence of the firearms, also referring to the fact that the men were made to lie on their stomachs while police searched the vehicle.
In handing down judgment Lesele said when there is doubt in the mind of the court, the only people who benefit are unfortunately the accused.
He said that in law, when the court is in doubt it is better to free a guilty accused than imprison an innocent person.
