Accused number one in the Hillary Gardee murder case has been denied bail for the second time.
Sipho Mkhatshwa's hopes of getting bail ahead of Christmas Day were dashed in the Nelspruit magistrate's court on Monday.
Magistrate Eddie Hall told Mkhatshwa that the fact that the indictment doesn't show a rape charge doesn't mean that the other charges that include murder, kidnapping and conspiracy to kill a witness, are not serious on their own right.
Mkhatshwa applied for bail again recently after his bid in October failed.
He later approached the court, saying he had new facts to present for his new bail application.
"The fact that the rape charge is not in the indictment [as] the accused said that affects the other charges but failed to tell the court how. The fact that the rape charge is not there doesn't mean that the other charges, including murder, kidnapping, conspiracy to commit murder where the accused (Mkhatshwa) and accused two (Lukhele) and accused three (Gama) are alleged to have planned to eliminate witnesses, are not serious.
"Therefore the court finds that the accused failed to bring new facts but this appeared to be an embroidery where the accused elaborated on facts that were presented before, therefore bail is denied," Hall said.
Mkhatshwa, Philemon Lukhele, Albert Gama and Hlabirwa Rassie Nkuna are accused of kidnapping and killing Hillary, the daughter of former EFF secretary-general Godrich Gardee in April.
Hillary went missing on April 29 while shopping with her adopted three-year-old daughter at the Nelspruit plaza.
Her daughter was later dropped on at street at KaMaGugu township the same night. Timber plantation workers found Hillary's lifeless body about 60km outside of Mbombela towards Sabie.
Hall also took a swipe at state witness and investigating officer Col Thamsanqa Mkhaliphi, citing that his behaviour to the court needs to be dealt with.
Mkhaliphi has on several dates failed to present the court with cellphone records and other section 205 records which the state claimed would link the accused to the murder.
"The investigating officer failed several times to appear to this court to give evidence which was needed by this court. The court went to make this judgment where the state through its witness the investigating officer failed to come give evidence in their opposition of bail."
Mkhatshwa's lawyer, Adv Lesego Kwakwa, told the court that he believed another court may reach a different conclusion hence asked to appeal the judgment.
"Your worship... you will remember that we said that the state is trying by all means to frustrate this application by not presenting evidence which may free my clients.
"Remember the cellphone records we were talking about which were placed on the docket? I tried to present them to this court but we were not allowed but the state which is opposing bail doesn't come to present them and tell the court why they are refusing bail," Kwakwa said.
Hall postponed the case to April 11 and transferred it to the high court for trial.
Meanwhile, Lukhele's bail application has been postponed to Tuesday after Mkhaliphi told the court that he was not ready to testify.
newsdesk@sowetan.co.za
Accused No 1 in Gardee murder denied bail, again
So-called new facts were just 'embroidery', says magistrate
Accused number one in the Hillary Gardee murder case has been denied bail for the second time.
Sipho Mkhatshwa's hopes of getting bail ahead of Christmas Day were dashed in the Nelspruit magistrate's court on Monday.
Magistrate Eddie Hall told Mkhatshwa that the fact that the indictment doesn't show a rape charge doesn't mean that the other charges that include murder, kidnapping and conspiracy to kill a witness, are not serious on their own right.
Mkhatshwa applied for bail again recently after his bid in October failed.
He later approached the court, saying he had new facts to present for his new bail application.
"The fact that the rape charge is not in the indictment [as] the accused said that affects the other charges but failed to tell the court how. The fact that the rape charge is not there doesn't mean that the other charges, including murder, kidnapping, conspiracy to commit murder where the accused (Mkhatshwa) and accused two (Lukhele) and accused three (Gama) are alleged to have planned to eliminate witnesses, are not serious.
"Therefore the court finds that the accused failed to bring new facts but this appeared to be an embroidery where the accused elaborated on facts that were presented before, therefore bail is denied," Hall said.
Mkhatshwa, Philemon Lukhele, Albert Gama and Hlabirwa Rassie Nkuna are accused of kidnapping and killing Hillary, the daughter of former EFF secretary-general Godrich Gardee in April.
Hillary went missing on April 29 while shopping with her adopted three-year-old daughter at the Nelspruit plaza.
Her daughter was later dropped on at street at KaMaGugu township the same night. Timber plantation workers found Hillary's lifeless body about 60km outside of Mbombela towards Sabie.
Hall also took a swipe at state witness and investigating officer Col Thamsanqa Mkhaliphi, citing that his behaviour to the court needs to be dealt with.
Mkhaliphi has on several dates failed to present the court with cellphone records and other section 205 records which the state claimed would link the accused to the murder.
"The investigating officer failed several times to appear to this court to give evidence which was needed by this court. The court went to make this judgment where the state through its witness the investigating officer failed to come give evidence in their opposition of bail."
Mkhatshwa's lawyer, Adv Lesego Kwakwa, told the court that he believed another court may reach a different conclusion hence asked to appeal the judgment.
"Your worship... you will remember that we said that the state is trying by all means to frustrate this application by not presenting evidence which may free my clients.
"Remember the cellphone records we were talking about which were placed on the docket? I tried to present them to this court but we were not allowed but the state which is opposing bail doesn't come to present them and tell the court why they are refusing bail," Kwakwa said.
Hall postponed the case to April 11 and transferred it to the high court for trial.
Meanwhile, Lukhele's bail application has been postponed to Tuesday after Mkhaliphi told the court that he was not ready to testify.
newsdesk@sowetan.co.za