Six SANDF Special Forces members face prison after losing bail appeal over Hawks investigator’s murder

Six members of the SA National Defence Force’s (SANDF’s) Special Forces, accused of murdering Hawks investigator Lieutenant-Colonel Frans Mathipa, are set to return to prison after losing their appeal of the ruling revoking their bail.

The half-dozen soldiers – Tumelo Mogaditswe, Kgosietsile Letsatsi, Samkelo Ngwenya, Boitumelo Nteleza, Kgamane Matlou, and Sunnybooi Wambi – were arrested over a year ago and face charges of murder, kidnapping, conspiracy to commit murder, and defeating the ends of justice.

The charges relate to the August 2023 murder of Mathipa, who was attached to the Hawks’ Crimes against the State unit in Gauteng.

At the time, Mathipa was investigating the December 2022 kidnapping of alleged terrorist group Islamic State of Iraq and Syria member Abdella Abadiga and his bodyguard Kadir Abotese, who are both Ethiopian nationals.

In July last year, the Randburg Magistrate’s Court granted each member of the SANDF R10,000 bail.

However, Mogaditswe, Letsatsi, Ngwenya, Nteleza, Matlou, and Wambi’s bail was revoked on January 16 by the Gauteng High Court, Johannesburg, Acting Judge William Karam, following an appeal by the National Prosecuting Authority (NPA) and the Hawks.

They were directed to surrender themselves to their nearest police station on or before January 23.

Their six other co-accused, Edward van Deventer, Herbert Mashego, Solomon Lechoenyo, Jacob Mokoena, Richard Mpoetsi, and Olyn Lenardus are still out on bail.

Mogaditswe, Letsatsi, Ngwenya, Nteleza, Matlou, and Wambi then launched an urgent application, challenging the revocation of their bail and seeking an order suspending or holding in abeyance the operation and execution of the order granted by Acting Judge Karam in relation to the bail appeal brought by the NPA and the Hawks.

They argued that their application for leave to appeal suspended the operation of that order, alternatively that the court, exercising its inherent powers under the Constitution, should suspend the operation of the order pending the determination of the contemplated appellate processes.

In opposing the application, the NPA told the court that the urgency was self-created and that the Superior Courts Act 2013 does not apply to criminal proceedings governed by the Criminal Procedure Act (CPA), as well as that the court lacks authority to suspend the operation of the bail appeal order.

The NPA and the Hawks also stated that the CPA contains no provision expressly suspending the operation of a successful State bail appeal pending further appellate proceedings.

On Tuesday, Gauteng High Court, Johannesburg, Judge Shanaaz Mia dismissed the six soldiers’ application for leave to appeal, as well as the constitutional relief they sought.

The soldiers had sought a declaratory order to the effect that the CPA is constitutionally invalid to the extent that it fails expressly to provide for suspension of bail appeal orders pending leave to appeal proceedings.

The judge found that while their explanation for the delay was not entirely satisfactory, particularly insofar as it relies on internal procurement arrangements within the SANDF, the threatened deprivation of liberty renders the matter sufficiently urgent to warrant consideration on the merits.

“The CPA contains no indication that the mere noting of an application for leave to appeal automatically restores or preserves bail once a high court has overturned the granting of bail on appeal,” Judge Mia found.

She said the SANDF members relied heavily on the fact that they had previously complied with bail conditions and remained on bail for several months, and that consideration may be relevant in future bail-related proceedings, but does not establish a legal entitlement to suspension of the bail appeal order.

“Nor can it be ignored that the applicants (the six Special Forces members) did not comply with the surrender order issued by Acting Judge Karam,” Judge Mia explained.

According to the judge’s ruling, their constitutional challenge was not properly capable of determination in these urgent proceedings for several reasons, including failure to comply with the court’s rules and not joining Justice and Constitutional Development Minister Mmamoloko Kubayi.

“Where a constitutional challenge has been initiated, it is important to ventilate the challenge fully. The constitutional challenge is insufficiently developed in the papers and arises in truncated urgent proceedings without the benefit of a full argument directed to the constitutional validity of the legislative scheme,” stated Judge Mia, adding that it would be inappropriate to determine the constitutional validity of the CPA provisions implicated in the matter.

The soldiers’ legal representatives, Lebese Attorneys, and the Hawks’ national spokesperson, Brigadier Thandi Mbambo, had not responded to requests for comment by Thursday afternoon.

loyiso.sidimba@inl.co.za