The High Court has cleared the way for four accused persons to face trial together after ruling that combining their cases would not cause prejudice.
Judge Justice Mavuso authorised the Crown to jointly try self-proclaimed Commander Thabo Kunene, Siphosethu Sidumo Malinga, Mxolisi Jabulane Simelane and Zweli Simelane after the defence raised no objection to the application. The ruling brings the four accused into one proceeding, with the court finding that the requirements for a joint trial had been met.
The order was granted on June 11 following an oral application by the Crown in terms of Section 135(1) of the Criminal Procedure and Evidence Act of 1938.
The judge delivered the reasons for the decision stating that Section 135 allowed several people accused of offences arising from the same circumstances to be charged in the same indictment and tried together, even where their alleged involvement occurred at different times.
He said the law also provided for persons alleged to have counselled, procured or assisted another person to commit an offence to be tried with the principal offender. It further allows people involved in the same transaction to be charged with different offences in the same indictment and tried jointly.
The Crown’s application was initially heard when the accused informed the court that they had not been served with copies of the indictment.
Judge Mavuso directed the Crown to provide the accused with the indictment and the court was informed that this had been done. Professor Dlamini appeared for Kunene and Malinga was standing in for Lucky Howe who was reportedly appearing in another court when the matter was called. He also stood in for Thabiso Mavuso who was in court.
After the indictment had been served, Dlamini informed the court that the defence was not opposing the joinder.
The court then considered whether combining the accused in the same proceedings would cause prejudice. Judge Mavuso found that it would not.
“Considering the fact that no prejudice would be suffered by accused persons in having them joined, the Crown’s application for joinder in terms of Section 135 of the Criminal Procedure and Evidence Act 67/1938 was allowed,” the judge ruled.
The court said the order constituted its reasons for allowing Kunene to be joined with Malinga, Mxolisi Jabulane Simelane and Zweli Simelane.
The decision means the Crown can proceed with the four accused in a joint trial rather than having the matter separated into individual proceedings.
