‘I didn’t just drop in for a bail application,’ says IO as defence argues Schedule 6 charges not applicable for Mkhwanazi

Advocate Peter Wilkins and Investigating Officer Nomsa Masuku argued at length over the details surrounding Emmanuel Mbense's death. Julius Mkhwanazi’s defence attorney and the investigating officer in the murder of Emmanuel Mbense have been engaged in a heated cross-examination on Thursday. The suspended Ekurhuleni Metropolitan Police Department (EMPD) deputy chief and his co-accused were before the Boksburg Regional Court in a bid to secure bail. Mkhwanazi and five others are facing multiple charges, primarily murder and defeating the ends of justice, related to the 2022 death of Mbense. The state is pursuing Schedule 6 charges in the matter on the grounds that a murder was committed by a group and with common purpose based on a prior agreement. Schedule 6 charges require the accused to prove exceptional circumstances for their release on bail, but Mkhwanazi’s attorney believes this may not be applicable. ‘Not the statements obtained’ Advocate Peter Wilkins ran through the statement of Investigating Officer (IO) Nomsa Masuku, which outlined the time from when the group identified Mbense for questioning until his death. Wilkins argued that because Masuku’s statement did not detail a moment where those involved met to agree to Mbense’s killing, and because Mkhwanazi only arrived after the assault was perpetrated, his client should only be considered an accessory. “Now, I want to put it to you, that in the charge sheet, up until now, there is no reference to a prior meeting at which it was decided to kill and rob the deceased,” Wilkins asked. The IO said she wasn’t able to comment, as the charge sheet was compiled by the state, and disagreed that that the defence’s question was accurate. “Myself, I will only respond to you on the crime that was committed on the day. We are talking about a document that was draughted by the state and not the statements obtained during the investigation,” said Masuku. The IO refused to answer yes or no, before the counsel stated, under the expectation that he would be corrected if wrong, that the state produced an amended charge sheet after the arrest of Mkhwanazi and his co-accused. Masuku stood firm, but Wilkins asserted that there was no evidence of a meeting prior to the murder of Mbense. “Sir, yes, applicant number five, yes, he was not there during the prior meetings and all, he only joined later,” Masuku conceded. ‘That was not a natural death’ The pair then argued over the statements that detail the series of events that led to Mbense’s death. The counsel wanted Masuku to elaborate on the actions taken by the accused that eventually led to Mbense’s death. “As to how he was assaulted and choked, that’s for the applicants, who were inside that room, but due to those assaults, he died. That was not a natural death,” she said. Pressed on discrepancies in time and progress of the alleged assault contained in witness statements and her report, Masuku clarified that her report was a broader account of matters. “Sir, I am the investigating officer of this matter. I didn’t just drop in for a bail application. I investigated this matter from April 2022 up to now. “I wrote my bail statement considering the whole docket that the state relied on to draught those charges you are talking about,” Masuku said. Getting increasingly agitated, Masuku said the docket contained the detailed evidence against the accused, and said the counsel was being deliberately misleading with his questions. “Your questions, sir, unfortunately, I won’t respond to the way you want me to respond. I will respond according to my investigation whether you like it or not,” she asserted. Feeling a stalemate had been reached counsel asked, and would ask again later, that the IO answer questions in a simple manner. “I will leave that here and I will argue to the court that we disregard that you are an evasive witness who contradicts herself and refuses to answer simple questions,” Wilkins concluded. Mkhwanazi and his co-accused’s bid for bail will continue with further cross-examinations into Friday.