This is absolutely reprehensible and it makes a complete mockery of o[ur justice system!
Pretoria judge slammed for 'failing law'
Siyabonga Mkhwanaz
October 19 2006 at 04:33AM
A woman whose mother was murdered is fuming at Pretoria High Court judge Justice Ntsikelelo Poswa's decision to grant R1 000 bail to the 64-year-old's alleged killers. Judge Poswa's decision to grant bail to Abram Mabena, 22, and Oupa Frans Bofu, 25, has also been slammed by a full bench of the Supreme Court of Appeal (SCA), who have just released their reasons for nullifying the bail order last month and reissuing warrants for the men's arrest. The alleged killers, who have a trial date on October 31, are still at large and a police source said it would be hard to recapture the accused, who moved from place to place.
The men are accused of breaking into the home of 88-year-old Nic and Cathy de Lange, of Wonderboom, Pretoria, on November 19 2003 after cutting through their burglar bars.
'The biggest letdown has been the justice system'
According to the indictment, they overpowered the pensioners, bound their necks with wire and cable, stole their property and fled. Mr De Lange survived but his wife died of strangulation. Speaking to The Star on Wednesday, the De Langes' daughter, Desiree Scott, said she was furious about the whole episode. "I'm disgusted. The police were sterling. The biggest letdown has been the justice system," Scott said.
During the men's first bail application in the magistrate's court, which was refused, both accused "readily admitted that they were indeed the culprits, but said they had not intended to kill Mrs De Lange, who, they said, was alive at the time they left the house", said the SCA bench, comprising judges Louis Harms, Piet Streicher and Robert Nugent.
'Justice according to law failed completely'
The case was then postponed several times as an inquiry into the mental state of Mabena - who had a history of epileptic fits - proceeded. When the matter came before court in April last year, Mabena's mother and brother testified that "he had a history of aggressive behaviour for which he appeared to display no remorse".
On September 23 2005, however, the matter came up on the court roll for another postponement. Instead, Judge Poswa demanded to know why the accused could not be released on bail, as the case had been dragging on for a long time.When told that the two had no fixed address, the judge replied: "It is very easy to say of African people who do not have mansions that they do not have addresses, and they get into some holes where they get found all the time, and the police arrest them. They do not get arrested in the air."
Judge Poswa emphasised that he had no sympathy for the state in its opposition for bail, saying: "I do not play games with people's liberty. If others think by doing so I am playing games with justice, so be it. Let them think that way. "Significant dates in the lives of young people, Christmas in particular, New Year, just keep going by and you are in prison... and these delays are not your (the accuseds') fault."
Judge Poswa then ordered that Mabena and Bofu be released on R1 000 bail each, despite their facing serious charges of murder, attempted murder and robbery with aggravating circumstances. The state appealed the order and Transvaal Judge President Bernard Ngoepe himself ordered that the men's bail be suspended, pending the outcome of the state's application for leave to appeal. At that hearing, Judge Poswa said Judge Ngoepe had not had all the facts before him when he made his ruling and refused the state permission for leave to appeal his order. He ordered that the men be freed.
In its judgment, written by Judge Nugent, the SCA said the circumstances in which bail was granted to the men were unusual. "It was granted in the course of an inquiry that was under way in relation to the mental state of Mr Mabena, before he and Mr Bofu had been called upon to plead," it said. The SCA also said it was "disturbing" that Judge Poswa had failed to hear state prosecutor, advocate Nombulelo Mahanjana, and that "she was subjected by the judge to a relentless barrage of hectoring questions and assertions".
It said Judge Poswa questioned Mahanjana's integrity and that the prosecutor "showed remarkable resilience and fortitude, in circumstances which she must have found both difficult and humiliating". "Justice according to law failed completely. In the absence of the inquiry that is required by law, the judge had no legal authority to grant bail," the SCA said.
This article was originally published on page 1 of The Star on October 19, 2006
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