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Sitting in court attempting to remain an impartial observer is a challenging task.
In fact, it is the task of the prosecution and defence to persuade the magistrate one way or another and it is inevitable that anyone sitting in the gallery is going to be caught in the net of rhetoric and swayed one way or another.
So it was at the second day of Garth Simpson’s bail application.
We are of course not in a position to judge whether Garth Simpson is guilty or innocent, or whether he bears some measure of blame for the death of Qiniso Dlamini. This will emerge from the trial. For now, we await the grant of bail. The decision on this is due tomorrow.
Our own impression, based on what was presented in court, is that there remain a number of open questions, not only with regard to the facts at issue (and their interpretation), but with the manner in which the case has been investigated. The questioning of the investigating officer, Captain Khambule, by both the prosecution and defence provided a first glimpse of how the respective teams will attempt to substantiate their versions of events and undermine those of their opposition.
While the prosecution has hinged its presentations so far on the testimony of the investigating officer, the defence called into question the thoroughness with which he had undertaken his investigation. Towards the end of his testimony, the defence asked him if he had completed his investigation, to which he replied, ‘Yes, I have all of the statements.’
He stated that the Dlamini family resides on the property of the accused and that if the accused were granted bail, he would be living side by side with the Dlamini family. The defence pointed out that the Dlamini family, in fact, live on a neighbouring farm. Khambule said he was unaware of this.
Earlier in proceedings, the investigating officer raised the point that the video footage of the altercation was not taken by a disinterested party and on that basis should not be considered reliable evidence. The defence, seeking to make the same argument regarding the witness statements, asked whether he had determined the witnesses’ relationship to one another.
The investigating officer said that no relationship had been established.
‘Did you personally investigate this?’
‘The persons are not related.’
‘It is a simple question. Say “yes” or “no”.’
‘Are you going to keep barking up the same tree? Would you have wanted me to have tea with each of them individually, in their homes?’
It remained unclear whether Khambule did, in fact, investigate the witnesses’ relationship to one another but his seeming obtuseness here raised the question as to whether he had in fact done so.
Furthermore, the investigating officer stated that Simpson should have called the stock police on discovering the stray cattle, or impounded them and then called the stock police. The defence attorney informed him that on his client’s version – a version that the officer would have been aware of – this was exactly what Simpson had done. The investigating officer claimed not to have known this.
During day one of the hearing, a lot was made of the fact that Simpson had retrieved a shotgun from his house as opposed to a pistol, registered as a self-defence weapon. Khambule stated that in his opinion, the shotgun was specifically chosen because it was more deadly. In light of this, the defence asked the investigating officer whether he had inspected the accused’s safe. No, he said, the gate was locked and he did not have a key. The defence then pointed out that had he done so, he would have seen that there were, in fact, two safes, one at the top and one at the bottom. The shotgun was in the bottom safe which is the reason Simpson grabbed it. He felt like he was in danger and retrieved the firearm closest to hand.
Possibly the most curious (and potentially important) issue of all concerned the firing of a warning shot. This appears to be audible in the video footage. When asked by the prosecutor whether there were any inconsistencies between the witness statements and the video footage, the investigating officer told the court that a warning shot could be heard in the video, whereas the witnesses said there was no warning shot. When the police arrived on the scene, Simpson did not mention anything about a warning shot, either. In addition, the investigating officer said that only one spent cartridge was found at the scene, and for obvious reasons, that is considered to be the cartridge spent in the shooting of Dlamini.
The magistrate interjected to ask whether the implication was that the video had been edited.
‘That is exactly what I am saying,’ came the investigating officer’s reply.
This in turn suggests that within hours, or perhaps a day at most, somebody managed to doctor the video footage to include a fake warning shot and probably Simpson saying ‘Next one!’
If, however, no reason can be shown to discount the video, it raises the question of what happened to the other spent cartridge.
Interestingly, the defence asked the investigating officer why Simpson would have had the encounter filmed if he was intent on committing a murder. In response, the investigating officer said he had done so because he wanted a video recording of himself killing somebody. A person in a ‘normal, civilised state of mind’ would have known that the footage could end up in the wrong hands – in this case the family of the deceased.
This line of reasoning will presumably be interrogated at the trial.
Adverse public reaction
A key objection to the granting of bail has been the possible adverse public reaction. Specifically, if bail is granted, will this trigger public disorder and will Simpson be safe from harm and is the state capable of protecting him should certain persons wish to harm him?
The prosecutor in fact asked the investigating officer whether ‘bail hinges on public disorder’. ‘Yes, that is correct.’ he replied.
He added that he did not think that Simpson would be safe if he returned home and that he did not believe the state had the capacity to protect him from harm.
When questioned by the defence, Khambule stated that although the Dlamini family were respectful, law-abiding people, as Africans they had extended families and he could not guarantee the accused’s safety. (At this point, the gallery broke out in laughter.)
The prosecution argued that there were a number of extraordinary circumstances surrounding this particular case and on that basis the state should not grant bail. He made reference to ‘the media houses’, the ‘police outside the courthouse’, and ‘the different political parties’ and the fact that the community was still nursing the effects of the looting and the disturbance to the peace which that brought with it.
We found the emphasis on the public’s reaction to bail surprising. This was especially so as Simpson had provided an alternative address ‘400, 500, or 600’ kilometres away where, with the permission of the court, he could reside until the commencement of his trial. To the extent that threats against him were a consideration, this would seem to be more than adequate mitigation.
(When asked by both parties whether he would be agreeable to Simpson relocating to the alternative address, the investigating officer said that if the court approved the address, he would be agreeable.)
Thus, if the alternative address is approved by the court, the matter on which the bail hearing ‘hinges’ – public disorder – largely falls away.
How this will play out will be revealed in due course. The case still has a long course to run.
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