Schedule 5 or 1? Nature of offence in spotlight as Magudumana bail bid wraps up

The argument of whether some of the charges Nandipha Magudumana faces fall under schedule 5 or 1 of the Criminal Procedure Act again came under the spotlight on Monday as the disgraced doctor continued her fight for bail, which the state opposes.

Magudumana was back in the Bloemfontein magistrate's court for the third day of her bail application which was initially set down for two days last week.

The day coincided with Magudumana's 35th birthday, a milestone she marked with her feet chained and her father and co-accused Zolile Sekeleni and siblings sitting a few rows away from her at the back of the court. After court proceedings her sister took a cake to the accused outside the court.

Magudumana cut a more dignified look to last week, when she spent the better part of Tuesday in tears.

Monday's proceedings saw her defence present closing arguments followed by the state.

Her legal representative Machini Motloung spent about two hours accusing the state of not having evidence to back up claims made in investigating officer Lt-Col Tieho Flyman's affidavit or failing to rebut facts contained in Magudumana's bail application.

The major bone of contention during his and later the state's closing arguments was the issue of whether Magudumana was applying for bail under schedule 5 or 1 offences. The former places the burden to prove that the interests of justice permit the release on bail on Magudumana while the latter moves it to the state.

Last week, defence advocate Frans Dlamini said Magudumana was charged with corruption but there was no evidence to support this in the charge sheet or Flyman's affidavit.

“The posture we are assuming is a posture that says 'we have evidence before this court'. This evidence is saying count three ... [which is] corruption and refers to R85,000. Nothing else ... in respect of accused number one [Senoho Matsaora].

“According to the charge sheet, count three refers to R40,000 and creates an impression that there is R2.5m at play here,” he said.

Motloung also focused on her personal circumstances, disputed departure from South Africa and subsequent arrest in Tanzania to make his case.

On the first, he said: “This point is crucial when determining the suitability of the applicant to be admitted to bail. All the factors in her affidavit, in respect of personal circumstances, remain undisputed. 

“Now it's trite law that where evidence remains undisputed, that evidence automatically should be accepted by this court. My submissions are the evidence, in as far as personal circumstances are concerned, is not riddled with improbabilities, is not far-fetched, is succinct and to the point,” he said.

On how Magudumana left South Africa, which she claimed happened “under pressure and threats” and was not voluntary, Motloung said it wasn't “clear whether the state rebuts this version and puts another version”.

He also took issue with the admissibility of images submitted by the state showing Magudumana and Bester in a vehicle together and the “evidentiary weight” they carry.

On her arrest in Tanzania, which the Free State High Court found to have been a disguised extradition, Motloung said it was sub judice.

“But the point I want to drive here is the applicant was brought to this country in the manner that has been delineated expansively in the higher courts but she remains in custody from April 13 to date. The relevance of this evidence is the applicant has spent a long period in detention ... and the reason for her being in custody cannot be attributed to her.”

Motloung reiterated Magudumana was not likely to evade trial, can only afford R10,000 bail as she's been “out of pocket” since her arrest and raising her bail amount would be “tantamount to refusal of bail”.

Prosecutor Sello Matlhoko began his closing arguments by addressing certain “aspects” of Dlamini's address to the court last week.

Motloung accused Matlhoko of “unlawfully” amending Flyman's affidavit, labelled the first five pages of the document “stories” and “used” various names to refer to both men.

Matlhoko denied that he made changes to the affidavit, save to amend the word “graze” to “grave” as captured in court records, and said Dlamini's address consisted mostly of a “personal attack” against him and Flyman.

On the correctness of the schedule, Matlhoko said: “At the beginning of these proceedings the state and defence agreed the applicant is facing, among other things, charges falling under schedule 5. This was based on the charges against the applicant that include corruption and fraud, which the state alleges was committed by a group of persons acting in the execution and furtherance of a common purpose.

“The director of public prosecutions has since confirmed the schedule but there are aspects that have been raised that are, in my view, misleading and not totally correct, and that relates to the charges. Let's look at count three that the defence alleges is the sole charge that may speak to schedule 5. The charge is clear, count three states, among other things, that the accused ... unlawfully and intentionally, directly gave out or agreed or offered to give [money] to any other person [in this case] Teboho Lipholo.”

Matlhoko disputed the inference that the charge related to payments made to Lipholo, saying even if “there was not a cent” paid, the making of an offer of gratification of R2.5m and acceptance of the offer made the “corruption complete”.

The same applied for count 14, which alleges Magudumana and Bester paid Matsaora R105,000 to help Bester escape.

On Motloung's assertion that the state failed to produce evidence to back up Flyman's affidavit, Matlhoko flipped it back on the defence, accusing them of doing the same in Magudumana's bail application. 

“They've been saying from day one until now [that the state must prove its allegations] and that is not the approach. It's about factors that are mentioned ... which the court must consider on the issue of bail.”

Matlhoko also touched on Magudumana's disputed departure from South Africa, questioning why she failed to open a case against her alleged kidnapper despite that he took her away from her family, children and business.

He also disputed the claim that Flyman was xenophobic.

After argument by both parties, the matter was postponed to September 11 for judgment.

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