Durban — A criminal law expert says that had the 1989 political murder trial been sitting in the high court in the event of a conviction by the State the court could sentence the accused to life.
Gugulethu Wesley “Matiri” Madonsela, alleged by the State to have been affiliated with an A-Team that worked with the Natal Security Branch, is charged with the alleged murder of Siphelele Nxumalo, 17.
The trial sat on Monday and was adjourned to continue on Friday in the Durban Magistrate’s Court.
Nxumalo was shot in Chesterville and died from multiple gunshot wounds. At the time, he was an activist with the UDF, which was affiliated with the ANC.
On Monday, it emerged that since the alleged offence was committed in 1989, when it came time for sentence, should he be convicted, this would be done under the ambit of the Criminal Procedure Act of 1977 where the minimum prescribed sentence of life did not apply.
William Booth explained that the minimum sentence legislation came into effect in 1997 with the General Law Amendment Act, which brought in minimum sentences for certain crimes.
“The regional court from that date could impose minimum sentences of life imprisonment if it’s a case of planned murder, where the accused would have the opportunity to try to reduce the sentence by presenting evidence establishing substantial and compelling circumstances in respect of mitigation. Before 1997 the high court could impose the death sentence, which was abolished with the coming into being of our Constitution.”
He said the sentences of the regional court in 1989 could be direct terms of imprisonment, but not the death penalty or life imprisonment.
“Since the offence was committed in 1989 and should there be a conviction, then the minimum sentence laws can’t be applicable. If this matter was being heard in the high court, it would have the jurisdiction technically to impose life. The presiding officer in the regional court could not decide to send the matter to the high court because it is the prosecution who decides which court deals with a case. The prosecution has to make that decision they are dominus litis as to where the case should go and what the charges should be, and which evidence is presented to the court,” said Booth.
According to the National Prosecuting Authority, Madonsela had absconded after being granted bail after his arrest for the murder in 1989. When an accused absconds from court, bail is forfeited and they remain behind bars until the finalisation of their case. In this instance Madonsela is currently out on bail.
Madonsela, who pleaded not guilty, opted to not have assessors sit in on his trial. Legal expert Mpumelelo Zikalala explained the possible reasons for an accused to make this choice.
“Assessors can be anyone, in this case it could have been someone who has a painful picture when it comes to the apartheid government. It is possible the thinking is the assessor won’t be sympathetic to the accused…
“It’s possible the accused was advised of that since the matter is not in the high court.”
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