By Luvuyo Mjekula
In a twist that brought jubilation to the Grahamstown-Anti Crime faithful, murder-accused former Makana ward councillor Luyanda Sakata and one of his three co-accused have been released on bail after winning an appeal in the Makhanda High Court.
Judge Sunil Rugunanan found that in opposing bail against Sakata, 42, and Mphithizeli Diko, 63, in the Makhanda Magistrate’s Court, the state had relied on affidavit evidence from the investigating officer in the murder case against the duo.
The two men, along with two other co-accused – Xolisile Mlatsha, 54, and Vuyo Madinda, 42, are accused of fatally wounding Siviwe Sajini with sticks and pipes in Ethembeni Location on 9 March 2023. Sajini died in hospital from a head injury due to blunt force, according to post-mortem results.
The four were only arrested on 14 March this year.
Mlatsha and Madinda were granted bail of R500 each because they had no pending cases or previous convictions. The state had not opposed bail against them.
However, the state had opposed bail against Sakata and Diko and during ther bail application, state prosecutor Zimvo Mndi had submitted that in his sworn affidavit, investigating officer Warrant Officer Daniel Brits, had mentioned that the state had a strong case against the accused and an eyewitness identified the two men at the scene and would testify on the role they played.
Magistrate Robert Ntuli subsequently refused to grant the two men bail, basing his decision significantly on the state’s submissions. Handing down his judgment, Ntuli had asked, rhetorically: “Would it be in the interests of justice to release [Sakata and Diko] on bail again? Would it not make a mockery of the justice system? Will that not create a problem out there?”
However, after considering the record of the magistrate’s court proceedings, the judge found that magistrate Ntuli had been moved to refuse bail by the previous murder case against the two men and also appeared to have been persuaded by the prosecutor’s submission of the presence of direct evidence from an eyewitness.
Rugunanan said: “I can emphatically say that the submission by the prosecutor was misleading. It is most certainly not borne from the material contained in the affidavit by the investigating officer.”
The judge went on to directly quote, from the court record, an extract from the investigating officer’s affidavit, on page 134, which stated: “The witness then identified some of the suspects participating in the mob as members of the Anti-crime. They were beating the victim with sticks and steel pipes.”
“The paucity of detail as to the identity of the suspects and the role each of them played is manifest and throws the submission by the prosecutor into the realm of speculation and conjecture,” judge Rugunanan asserted.
The judge found that Sakata and Diko had put up detailed affidavits in which their circumstances were detailed in a methodical and meticulous manner, notwithstanding the lack of detail pertaining to their dependants’ ages and identities.
He said the magistrate’s judgment failed to constructively engage with matter in the two men’s affidavits when considering exceptional circumstances and its relevance to the interests of justice.
“It is particularly disquieting that no consideration at all was given to the public support in a petition drafted by some 200 signatories who vouched for the character of [Sakata and Diko]. Indeed [Sakata and Diko] maintain that they in harmony with their families, their neighbhours and the community in general, and that they would submit themselves at any place and time determined by this court,” the judge stated.
He was satisfied that the magistrate’s oversight amounted to a misdirection in his evaluation of the facts, which entitles interference on appeal.
The judge upheld the two men’s appeal and set aside magistrate’s Ntuli’s ruling to refuse bail.
He granted Sakata and Diko bail of R1 000 each with strict conditions. They must attend court proceedings related to their case, report to the charge office at the Beaufort Street police station every Monday and Thursday, not interfere with state witnesses and may not leave or travel out of the Eastern Cape without the knowledge and prior permission of the investigating officer.
Failure to adhere to the conditions would result in a warrant of arrest and forfeiture of bail money.
There was widespread expression of relief and jubilation after the court victory with Sakata and Diko’s followers thanking the Makhanda community for monetary donations to pay legal fees for the appeal while also extending gratitude to Mgangatho Attorneys who represented the two men.
They will appear again in court on Thursday.
