Two senior state prosecutors who presided over acquitted murder accused Bulelwa Ndudula’s bail hearing and trial are being investigated for alleged “unethical conduct”.
The National Prosecuting Authority is investigating the conduct of advocates Sakhumzi Mtsila and Quedo Botha.
This was after Ndudula’s lawyer advocate Mike Maseti had laid a formal complaint with their bosses.
Maseti accused the two of applying “underhand tactics” during the bail hearing and trial of his client, “in a desperate bid to make sure she was denied bail” and to “secure conviction at all costs”.
Botha and Mtsila’s alleged misconduct could prove costly as Ndudula is suing the NPA and the police for a combined R20m for unlawful arrest, deprivation of liberty, embarrassment, degradation and humiliation and malicious prosecution.
Ndudula was arrested in September 2016 for the alleged murder of her politician husband Sakhekile Ndudula, who was shot four times by unknown gunmen at his Cambridge West home in East London.
She was denied bail in October 2016 and spent two months in jail before she successfully appealed and was released on bail.
After a lengthy trial from May this year, Ndudula was acquitted on October 8 by Judge Igna Stretch.
This was after evidence emerged during the defence’s case that there were a possible two firearms used during Sakhekile’s shooting.
Such evidence, contained in a report by the police’s ballistic expert who analysed bullet cartridges found on the scene, was never presented to the court by the state.
The second gun evidence was only introduced by Maseti, who said they had bumped into such crucial evidence “by sheer luck”.
At the time he accused Mtsila of deliberately hiding the crucial evidence.
As a result, the ballistic report resulted in Ndudula’s acquittal.
In his complaint letter to NPA’s provincial acting director of public prosecutions (DPP), advocate Indra Goberdan, dated October 15, Maseti, accused the two “unethical” prosecutors of “total disregard of ethos governing advocate’s profession”.
Maseti accused Botha of “misleading” court during the bail hearing, about the existence of two witnesses who had allegedly heard the Ndudula’s fighting on the morning of the shooting.
He accused Mtsila of concealing evidence that showed that at least two guns were fired on the day Ndudula’s husband died in a hail of bullets.
“I wish to register a complaint of total disregard of ethos governing the advocate’s profession and that of general decay that is linked with officers of the court, who in pursuit of their own ambitions, go all out to present evidence in court knowing that the facts upon which they premised that evidence is downright untrue, illegal, and that it is unethical of them to do so.
“This injustice leaves an indelible mark on those who on account of thuggery presentation of evidence, by the prosecutor during the bail application, when he knew that the defence could have not had access to the docket, lies and mislead the court, claiming that the case that the state would present against Mrs Ndudula was unassailable and that there was no defence at all.
“Through this act of cavalier postulating by [the] state, coupled with the fact that there may be a likelihood that Mrs Ndudula would interfere with state witnesses and evidence, court refused her bail,” wrote Maseti.
“As a direct consequence of unprofessional conduct of Botha, Mrs Ndudula had to contend with the indignity of having to report to the police station daily, an act commensurate with monitoring of dangerous criminals.”
Maseti said had the president magistrate been told that the “star witness on whose evidence that the state was opposing bail, had in fact deposed to two conflicting statements, I doubt if court would have made an order denying Mrs Ndudula bail”.
“We cannot lessen belief that the public is entitled to some high moral standards that officers of the prosecutorial authority should embrace and Mr Botha failed dismally to do so.
“As if that was not enough, Mrs Ndudula had to contend with further thuggery in the high court, even though the state knew that at the very least, the ballistic report mentioned the presence of two firearms.
“Contrary to ethos of advocates’ profession, this report that was damning on the state’s case was not disclosed, even to court, meaning they misled court on a fact they were aware of.
“Mr Mtsila failed that litmus test that we all have to live up to,” charged Maseti.
Mtsila on Friday refused to comment, saying he was “not in a position to comment about such issues”, while Botha could not be reached.
NPA regional spokesperson Tsepo Ndwalaza confirmed receipt of the complaint.
“We confirm that acting DPP has received letter of complaint from Mr Maseti.
“The acting DPP confirmed that the letter has been forwarded to advocate Selvan Gounden, who is acting head of the Grahamstown office, who had requested a full report from the prosecutors involved.
“We are awaiting the said reports and recommendations by advocate Gounden. Once reports are received, appropriate steps, if any, will be taken against the prosecutors,” Ndwalaza said.
l Delivering her judgment last month, Stretch also lambasted Mtsila over his response during trial when asked about the ballistic report the state did not present in court.
Mtsila had told court that: “The evidence taken holistically does not exclude the accused from the commission of the offences, despite the existence of evidence that two firearms might have been used.”
This prompted Stretch to remark: “In my view, such a submission on behalf of the party on whom the onus rests to prove its case beyond a reasonable doubt, can only be described as frivolous, vexatious and irresponsible. The duty of the prosecution is to seek justice, not to blindly and purposelessly plunder after a conviction at all costs.”..