Kwakwa said by indicating that the state is ready for trial, means witnesses were supposed to be available “to then present their allegations against our clients.”
“When the judge came into court, we confirmed all our appearance then when the state was supposed to introduce their case, they told the court that they are withdrawing the charges. The reasons for the withdrawal was that their main witnesses are not available and cannot be found.
“It aggrieves us and our clients... You would remember they (the accused) were charged with these offences in May last year and obviously by then, the state has taken witness statements... Even during the bail application, they (state) kept saying they have a strong case and cannot be released,” Kwakwa said.
“They had almost the whole year to prepare their witnesses so that the trial can run smoothly and now they come and say their witnesses are nowhere to be found...”
He said the trio were the main witnesses which he believe do not exist.
“The sangoma claims to have consulted with accused no 1 who wanted cleansing for the murder of Hillary. That is the main witness with regards to accused number 1. The main witness is in respect to accused 2 and 3 (Lukhele and Gama) who alleged in the statement that he saw Mr Lukhele and Mr Gama loading the body of what appeared to be a woman in Mr Lukhele’s vehicle. The third witness alleges that he saw Mr Lukhele parked somewhere with Hillary in the vehicle and about four other male persons but he was able to identify Mr Lukhele because he knows him.
“The witness who said he saw Mr Lukhele loading the body of a woman in the vehicle at Mr Lukhele’s lodge (Intsika Guest House) claimed to know Mr Lukhele even from Swaziland before even Mr Lukhele came to SA [and that] Mr Lukhele used to give him odd jobs; he knows him very well. If these witnesses are not there, there is no way that the case can proceed,” Kwakwa said.
During Mkhatshswa’s bail application in July, his fiancée Zandile Magagula said the SMS tip-off police used to arrest him was allegedly sent from the number of her former mother-in-law.
He claimed that DNA taken from his clients and Gardee came back negative. He said there were negative results for blood samples taken from Lukhele’s guest house and shoes.
National Prosecuting Authority in Mpumalanga spokesperson Monica Nyuswa said they would not want to go into details of the indictment.
“We do have witnesses and the police are going to trace the witnesses with the hope of reinstating the charges.”
Kwakwa said they had received the witness statements after a long battle and that they were insufficient.
“This thing is very traumatic because this thing [the case] has damaged people’s lives. Mr Mkhatshwa lost his job [on the basis of the case]. He was arrested a day before his wedding. Mr Lukhele lost income from student accommodation, including his job. They are out now but when the case was covered internationally, they were on television and radio... They are still stigmatised in the sense that they are [labelled] murderers and rapists and so on.” he said.
Kwakwa questioned why the state did not subpoena the witnesses.
Police minister Bheki Cele’s spokesperson Lirandzu Themba said: “The court has ruled that the case has been provisionally withdrawn due to the unavailability of witnesses…This, as you can imagine is the conclusion of the court and should be respected. With that said, the charges are provisionally withdrawn which means if witnesses are traced, the case may be reinstated.”
Kwakwa said he would consult with his clients to determine their position which would include a lawsuit and application for permanent stay of prosecution.
The EFF slammed the state for mishandling the case and witnesses and raised the spokesperson Sinawo Tambo said: “The sudden disappearances of witnesses should be a cause for concern, as it raises the suspicion that they have either been intimidated or been dealt with in a clandestine manner.” which is all too frequent when it comes to whistle-blowers in SA,” said spokesperson Sinawo Tambo.
– Additional reporting by Mandla Khoza and Mpho Sibanyoni
Witnesses 'vanish' so Gardee murder accused walk
The state messed up people's lives, says defence lawyer
Image: Mandla Khoza
A sangoma who claimed one of the accused in the Hillary Gardee murder consulted him for cleansing is among three key witnesses that the state says are untraceable, leading to the case being provisionally withdrawn.
Magistrate Judge Takalani Ratshibvumo was scathing and expressed outrage yesterday when state prosecutor said the trial could not go ahead because key witnesses could not be traced.Ratshibvumo said: “This is a joke.”
The defence attorney of three of the four men accused in the matter Lesego Kwakwa said the sangoma was one of the witnesses who could not be traced. He further said revealed this to Sowetan on Wednesday night, further saying that another witness who had claimed claimed to have seen two of the accused (Philemon Lukhele and Albert Gama) loading what seemed like the body of a woman onto a car at Lukhele’s lodge in Mbombela, Mpumalanga also was not found.
The other witness told police Gardee was seen in the car with other men but could only identify Lukhele.
Police said in the early stages of their investigation that the sangoma had revealed that accused no 1 Sipho Mkhatshwa had consulted him for cleansing following Gardee’s murder in 2022.Provincial police spokesperson Brig Selvy Mohlala said: “It’s not that we arrested the wrong people but we learnt this morning that one witness said he was sick while two could not be traced. But we are working hard to get the witnesses.”
The fourth accused is Hlabirwa Rassie Nkuna.
State withdraws charges against Hillary Gardee's alleged killers
Kwakwa said by indicating that the state is ready for trial, means witnesses were supposed to be available “to then present their allegations against our clients.”
“When the judge came into court, we confirmed all our appearance then when the state was supposed to introduce their case, they told the court that they are withdrawing the charges. The reasons for the withdrawal was that their main witnesses are not available and cannot be found.
“It aggrieves us and our clients... You would remember they (the accused) were charged with these offences in May last year and obviously by then, the state has taken witness statements... Even during the bail application, they (state) kept saying they have a strong case and cannot be released,” Kwakwa said.
“They had almost the whole year to prepare their witnesses so that the trial can run smoothly and now they come and say their witnesses are nowhere to be found...”
He said the trio were the main witnesses which he believe do not exist.
“The sangoma claims to have consulted with accused no 1 who wanted cleansing for the murder of Hillary. That is the main witness with regards to accused number 1. The main witness is in respect to accused 2 and 3 (Lukhele and Gama) who alleged in the statement that he saw Mr Lukhele and Mr Gama loading the body of what appeared to be a woman in Mr Lukhele’s vehicle. The third witness alleges that he saw Mr Lukhele parked somewhere with Hillary in the vehicle and about four other male persons but he was able to identify Mr Lukhele because he knows him.
“The witness who said he saw Mr Lukhele loading the body of a woman in the vehicle at Mr Lukhele’s lodge (Intsika Guest House) claimed to know Mr Lukhele even from Swaziland before even Mr Lukhele came to SA [and that] Mr Lukhele used to give him odd jobs; he knows him very well. If these witnesses are not there, there is no way that the case can proceed,” Kwakwa said.
During Mkhatshswa’s bail application in July, his fiancée Zandile Magagula said the SMS tip-off police used to arrest him was allegedly sent from the number of her former mother-in-law.
He claimed that DNA taken from his clients and Gardee came back negative. He said there were negative results for blood samples taken from Lukhele’s guest house and shoes.
National Prosecuting Authority in Mpumalanga spokesperson Monica Nyuswa said they would not want to go into details of the indictment.
“We do have witnesses and the police are going to trace the witnesses with the hope of reinstating the charges.”
Kwakwa said they had received the witness statements after a long battle and that they were insufficient.
“This thing is very traumatic because this thing [the case] has damaged people’s lives. Mr Mkhatshwa lost his job [on the basis of the case]. He was arrested a day before his wedding. Mr Lukhele lost income from student accommodation, including his job. They are out now but when the case was covered internationally, they were on television and radio... They are still stigmatised in the sense that they are [labelled] murderers and rapists and so on.” he said.
Kwakwa questioned why the state did not subpoena the witnesses.
Police minister Bheki Cele’s spokesperson Lirandzu Themba said: “The court has ruled that the case has been provisionally withdrawn due to the unavailability of witnesses…This, as you can imagine is the conclusion of the court and should be respected. With that said, the charges are provisionally withdrawn which means if witnesses are traced, the case may be reinstated.”
Kwakwa said he would consult with his clients to determine their position which would include a lawsuit and application for permanent stay of prosecution.
The EFF slammed the state for mishandling the case and witnesses and raised the spokesperson Sinawo Tambo said: “The sudden disappearances of witnesses should be a cause for concern, as it raises the suspicion that they have either been intimidated or been dealt with in a clandestine manner.” which is all too frequent when it comes to whistle-blowers in SA,” said spokesperson Sinawo Tambo.
– Additional reporting by Mandla Khoza and Mpho Sibanyoni
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