The issue of legal heavyweights brought in to represent alleged hitmen has stirred a hornets' nest over possible flaws in the criminal justice system.
KwaZulu-Natal police commissioner Lt-Gen Nhlanhla Mkhwanazi said he was concerned to see top legal representatives at the first appearance last week of five suspects linked to the murder of rapper Kiernan “AKA” Forbes and his friend, chef and author Tebello “Tibz” Motsoane, at Durban's Wish restaurant on the trendy Florida Road in February last year.
Lindokuhle Thabani Mkhwanazi, 30, Lindani Zenzele Ndimande, 35, Siyanda Eddie Myeza, 21, Mziwethemba Harvey Gwabeni, 36, and Lindokuhle Mhlaliseni Ndimande, 29, made their second appearance in the Durban magistrate’s court on Wednesday.
Two other accused, brothers Siyabonga Gezani “Nxele” Ndimande and Malusi Dave “Mjay” Ndimande, appeared in the Eswatini magistrate's court on Tuesday. Some of the accused are said to be hitmen with ties to the taxi industry.
The accused face 11 charges: two of murder, five of attempted murder, conspiracy to commit murder, possession of unlawful firearms and possession of unlawful ammunition. The state has since added money laundering to the charges.
Mkhwanazi said most accused are unemployed or don’t earn enough to afford expensive lawyers. He said this raised questions about the lawyers' interest in the case.
“I’m unsure whether these lawyers were involved in these cases purely for the reason to ensure that the trial is done fairly, or whether it is motivated by a large sum of money. To pitch up here represented by very expensive lawyers is concerning.
“It just says to us, ‘Are these lawyers doing this because they want to serve so that people get their rights in terms of the law, or they are doing it for money?’ We tend to suspect ... the money. But I am not a lawyer, I was never a lawyer, so I don’t know what it entails or under what circumstances you represent someone,” said Mkhwanazi.
Mkhwanazi’s sentiments echo those of prosecutor Elvis Gcweka in September when he said during a multiparty seminar on political killings that the National Prosecuting Authority was concerned about the people funding the defence of alleged hitmen.
Gcweka, representing the state in the AKA and Tibz murders, said in most cases when they checked the background of a person accused of being a hitman, there was nothing to justify how they could be represented by the province's top attorneys.
These are dangerous people who pose a risk and had to be to be hunted before being arrested
— Prof Stephen Tuson, criminal law expert
He said given the prevalence of political killings and hitmen for hire it was an issue that needed to be addressed in the criminal justice system. He added the lawyers' usual strategy was to “out-law” the matter with delaying tactics.
Gcweka said there were a lot of “enablers” — those providing financial means for hitmen to fund their legal matters — and there was a “huge mountain to climb in finding means to get to the enablers”.
“We want to be able to charge them with money laundering, corruption and fraud,” he said. No matter how much they tried, they could not get to the enablers.
“It is important to have a witness who was there when the hit was ordered to come forward so that you can get to the enablers,” said Gcweka.
Gcweka has prosecuted several political killings in KZN, including the murder of ANC Youth League secretary-general Sindiso Magaqa, who was killed in 2017 in Umzimkhulu.
Senior advocate Simphiwe Mlotshwa, who represents Mkhwanazi and Mhlaliseni Ndimande, described the state's outcry as “short-sighted”.
“In terms of the law you can receive payment from whomever has paid for the client. In terms of my clients they are able to foot their own legal costs,” said Mlotshwa.
He said as the bail hearings forged ahead, they would be in a position to disclose the nitty-gritty on how his clients will honour their legal fees.
“We are still going to state our financial case, but you must also take into account how some of families of the accused travel more than 300km to attend court sessions.”
Mlotshwa argued that people who find themselves on the wrong side of the law have a right to a legal representative of their choice. He felt it was disingenuous of Mkhwanazi to raise the issue as politicians also find the best legal teams to represent them when they are in trouble with the law.
He said he was disappointed by Mkhwanazi's statement.
Criminal law expert Prof Stephen Tuson, a practising attorney and a criminal procedures lecturer at Wits Law School, said: “Sure, it’s a valid concern, and the full disclosure by the defence should have a bearing on the matter.”
Tuson expressed doubts on the prospect of the accused being granted bail, as they have proven to be flight risk to the state.
“These are dangerous people who pose a risk and had to be to be hunted before being arrested,” said Tuson.
Advocate Yolande Gielink, who represents Myeza, shot down plans mooted by the state to “restrict access to justice for accused”.
“I can tell you now that would be fiercely challenged and [will end up in] the highest court in the land. It’s impossible, we live in a free country,” said Gielink.
She said in her experience the family of accused people collectively paid legal fees.
“They come together and each puts in R5,000 for Yolande [for example]. You must also remember that it’s not the attorney who causes crimes but rather poverty, greed and corruption,” she said.
University of KwaZulu-Natal law expert Suhayfa Bhamjee said there was no way to restrict the accused's choice of legal representation.
“The whole criminal justice system's due process is guaranteed in the constitution. Every person has a right to legal representation whether paid for by the state or not,” said Bhamjee.
If people are deemed notorious and thus undeserving of legal representation, it creates a problem for the principle of justice, she said.
“The question is: how can the suspects afford these lawyers without showing bank accounts? That’s the question for the fiscus.”
There were mechanisms to investigate financial records and trace the source of money involving Sars and banks, said Bhamjee. “But to work on the assumption of dirty money is wrong. You have to have investigations first — full audits of where money is coming from.
“I don’t know whether the NPA would be able to pass a certain law which will prevent certain lawyers from representing accused.”
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