EMZ607/18/LG 1 JUDGMENT

CASE NO EMZ607/18

DATE 28 NOVEMBER 2018

STATE versus MUDRAY GARY GOVENDER

PROSECUTOR Presiding officer is Ms Botha, public prosecutor is

Mr Nqathi[?] The accused is represented by Mr Ngcobo. Interpreter is

Mrs Pakkies. The matter is on the roll today for judgment on the accused’s

application for release on bail.

COURT Thank you. Mr Ngcobo, you’re standing in for Adv Wolmarans?

10 MR NGCOBO Yes, yes, I confirm, Your Worship.

COURT Thank you.

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JUDGMENT 28 NOVEMBER 2018

COURT The Court will then proceed to give its judgment on the bail

application. Mudray Gary Govender is a 34 year old male. He is charged

with one count of premeditated murder. He is now applying for bail.

Applicant is represented by Adv J Wolmarans, instructed by Mr B Ngcobo.

The State is opposed to bail. The charge arises from an incident

which took place at Hibberdene on 7 November 2018. The State alleges that

20 on that day the applicant killed the deceased who was his wife by shooting

her three times with a firearm.

It is common cause that the offence of premeditated murder with

which the applicant is charged is an offence listed in Schedule 6 of the

Criminal Procedure Act and therefore that Section 60(11)(a) of the Act

applies to this case. It is also common cause that as a result the applicant
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bears the onus of proving on a balance of probabilities that exceptional

circumstances exists which requires his release in the interest of justice.

Failure to discharge such onus inevitably leads to the refusal of bail

because the section directs the Court to order the detention of the accused

until dealt with in accordance with the law unless he discharges the

aforementioned onus in an application for bail.

In S v Wantka[?] 2000 (2) SACR 371 (TK) it was held that:

“The approach to establishing whether exceptional

circumstances had been proven involved a two-fold

10 inquiry. The applicant was first enjoined to establish

that his circumstances were exceptional in the sense

envisaged in Section 60(11)(a); secondly, that he was

required to prove that such circumstances justified in

the interest of justice that bail be granted.”

The judge in the abovementioned case said that it is the first leg of the

inquiry that distinguishes the onus borne by applicants in Schedule 6 cases

from the proof required in Schedule 5 matters. The inquiry relating to the

second leg cannot even begin unless the first leg has yielded positive results,

otherwise there would be no distinction on the issue of onus required in both

20 subsections (11)(a) and (b).

Subsection (11)(b) merely requires that the applicant proved that the

interest of justice permit his release on bail. Exceptional circumstances are

not defined, but depend on the facts and the circumstances in each case.

The term “exceptional circumstances” has been the subject of interpretation

by both the High Court and the Supreme Court of Appeal.

In the Wantka case the judge agreed with the approach and the

meaning of exceptional circumstances adopted in both S v Mohamed 1999

(2) SACR 507 (C) and S v Janka 2000 (1) SACR 237 (TK) that:

“Circumstances which are of an ordinary nature to bail

applications can in the context of a particular case be

exceptional or unusual. The applicant for bail in such

cases is not required to prove the existence of factors

different to normal considerations listed in subsections

(4) to (9) of Section 60. What is required of him,

10 however, is to show that such usual or common factors

are, in the context of his case, blended with an element

of exception or difference”

In S v Dlamini & Others 1999 (2) SACR 51 (C) in footnote 103 KRIEGLER J

states as follows:

“There is no reason to believe that Courts will find it

impossible to find that release on bail is justified where

an ordinary circumstance, that is one of those

mentioned in subsection (4) to (9) is present to an

exceptional degree.”

20 The strength of the State’s case is a material factor in determining whether

exceptional circumstances have been proved. In assessing the strength of

the State’s case the Court is mindful of what was said in S v Van Wyk 2005

(1) SACR 45 where it was said:

“The Court, dealing with a bail application, does not

make a provisional finding of innocence or guilt. The

Court’s duty is to make a prima facie finding of the

strength or the weakness of the State’s case. It is no

doubt so that if the State’s case is nonexistent or

subject to serious doubt then this would be tantamount

to have shown the existence of an exceptional

circumstance. Each case should be dealt with on its

own merits and it is important to bear in mind that the

evidence presented by the accused cannot be

considered in isolation but must be considered in the

10 light of the attitude of the State to the application and

the evidence tendered by the State. These are the

principles by which this Court is guided in determining

whether the applicant has discharged the onus cast on

him.”

The applicant elected not to testify at the bail application. Instead he

deposed to an affidavit in support of his application for bail and after the State

case a replying affidavit.

His brother, Marcus Govender, made a confirmatory affidavit and

testified under oath. Thereafter the investigating officer, Warrant Officer

20 Pienaar, gave evidence under oath. As far as his personal circumstances

are concerned, the applicant resides at 43 Tahiti Drive, Hibberdene. He

resides there with his three minor children, aged 8, 10 and 15 years

respectively and a domestic. He is renting the property.

He has an alternative address in Pinetown. This is the home of his

brother, Marcus, who is prepared to let the applicant reside there if ordered to
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do so by the Court. The applicant and the deceased were married in

community of property and as such the deceased was entitled to half their

estate. Although they were separated and in the process of getting divorced

at the time of her demise they had already agreed on a division of the assets.

The document setting out the divorce settlement terms and conditions and

that was signed only by the deceased on an unknown date was handed in.

The applicant is self-employed and owns two taverns called G-spot

Tavern and Bayanda Tavern, both located at Mtwalume. Previously he was

employed as a policeman in the South African Police Service. He also earns

10 two immovable properties, both situated in ward 18 Mtwalume. In addition he

also owns the following assets, a 2006 model BMW, a 1987 BMW, a Toyota

Hilux, a Toyota Avanza, extensive stock in the taverns which includes liquor

and cigarettes, and household furniture to the value of about R75 000.

The applicant has a passport but is prepared to hand it over to the

investigating officer. He is not in the best of health. He suffers from severe

ulcers for which he received chronic medication and is required to see his

doctor every six months. He will not endanger the safety of the public or

commit a schedule 1 offence. He will not evade his trial. He will not interfere

with any witnesses or interfere with the investigation of the case and he will

20 not disturb the public order or undermine the proper functioning of the

criminal justice system should he be released on bail.

The applicant will suffer irreparable financial loss and will not be in a

position to care for his children, his employees and their families should he

be denied bail as his businesses will have to close down. The applicant has

no previous convictions but he has one pending case of assault at Port

Shepstone Court. He will be able to pay an amount of between 5  000 and

R10 000 towards bail. The applicant’s family are of the Tamil religion which

entails certain ceremonies to be conducted 16 days after a death and which

requires the applicant to attend. Since his arrest the applicant’s two younger

children were taken by his parents and the eldest child by the family of the

deceased.

Warrant Officer Pienaar told the Court that the applicant and the

deceased were married but separated and that they were busy getting

divorced. They were staying at two different premises. Earlier on the

10 evening of 7 November 2018 the deceased was busy studying at the Wild

Coast Sun where she was going to write exams the following day.

She received numerous calls from the applicant requesting her to

meet him urgently because he was sick and needed to be taken to the

hospital. They then met at 20:15 in the parking area between a small shop

and Leisuredene Village, which was the home of the deceased.

Various witnesses saw the applicant and the deceased standing in

this parking area next to a motor vehicle. Two of the witnesses was in a

raised area and had a clear view of the scene. The witnesses heard three

gunshots and identified the applicant as the only person present with his

20 deceased wife at the time of the shooting.

The deceased was savagely shot to death in the street. She

sustained two gunshot wounds to the head and one on the right breast. After

the shots were fired the applicant approached two security guards who were

approximately 10 to 15 metres away from where the shooting took place. He

told them to contact the SAPS. According to the applicant a couple of men
 EMZ607/18/LG 7 JUDGMENT

approached him and the deceased and then shot the deceased.

The one security guard stated that he was shocked by what the

applicant told him because he only saw the applicant with the deceased and

no-one else. After the shooting incident the applicant called the brother of

the deceased who arrived within five minutes on the scene. The applicant

made a confession to him and told him that he shot the deceased. The

applicant also phoned the deceased’s older brother who was in Durban at the

time and confessed to him as well that he had killed the deceased.

Warrant Officer Pienaar stated that during his investigation of the

10 matter he found a letter written by the deceased dated 30 October 2018

wherein the deceased stated that she was assaulted by the applicant and

that the applicant had threatened to kill her. She wrote that if something

should happen, if she is shot by a firearm it will be the applicant.

She further wrote that she would distribute this letter to various

parties and one of these people will be the applicant’s previous commander.

Warrant Officer Pienaar then obtained a J50 warrant for the arrest of the

applicant. After trying to contact the applicant various times on his cell phone

he went to look for the applicant at his father’s house. There he found quite a

few people preparing for the funeral.

20 As he did not want to make a scene he requested the applicant and

his father to follow him to the police station in order to arrest him. The

applicant phoned his attorney and was afterwards detained separately at

Scottburgh Police Station. The reasons why the State is opposed to the

release of the applicant on bail is as follows.

The applicant has an assault case pending under Port Shepstone

CAS174/8/2017. The applicant is possibly a flight risk as since his arrest

furniture, etcetera, has been removed by his family from his place of

residence at 43 Tahiti Drive, Hibberdene, and it is not sure whether the

applicant will stay there.

The applicant has no legitimate work as there is no business

registered to his name. There is also no liquor licence in the applicant’s

name or in the name of G-spot or Bayanda Taverns. The applicant is not tax

registered for any company and he has two passports. Although one of the

passports has already expired it is still possible to use it in a fraudulent

10 manner.

The applicant is facing a very serious charge which is very prevalent

in South Africa. The State witnesses are scared of the applicant and fear for

their lives. The applicant is a highly trained police member and was attached

to the TRT unit. He has already directly interfered with witnesses. The

applicant approached two of the witnesses and asked them to change their

story. There was tampered with evidence by the applicant.

He and some of his family members entered the house of the

deceased one day after her demise and removed various items. The

applicant was seen burning what was apparently his clothing. A cartridge

20 case was also recovered at the pile where clothing and other items were

burnt. Exhibits were also removed from the scene of crime.

The applicant and his family were requested to bring these exhibits

for investigation but they were uncooperative. These exhibits were a Toyota

Hilux which had a bullet hole on the left fender and most probably a projectile

inside the motor vehicle, the keys of the white BMW vehicle that the
 EMZ607/18/LG 9 JUDGMENT

deceased was driving on the night of her demise, as well as her house keys.

The community is very angry and it is clear that if the applicant is

released on bail it will upset the community. Every day that the bail

application proceeds there are between 60 and 70 people in court who are

opposed to the applicant’s release.

Now turning to the issue of whether exceptional circumstances have

been proved or not, the Court has to analyse whether anything in the

circumstances relating to the applicant is blended with an element of

exception if taken individually or jointly.

10 Adv Wolmarans was of the opinion that the applicant has proved on

a balance of probabilities that exceptional circumstances exist, especially in

the applicant’s personal circumstances. The prosecutor, Mr Gumede, did

however not agree. He said that the commonplace circumstances of the

applicant are not exceptional as a lot of people are employed and supporting

children.

Adv Wolmarans also argued that the investigating officer, Warrant

Officer Pienaar, was not a good witness and tried to make the applicant look

bad. After considering the evidence the Court has no reason to find that

Warrant Officer Pienaar was not a good witness.

20 In S v Schietekat 1998 (2) SACR 707 (C) 713H-714A SLOMOWITZ

AJ stated as follows:

“Bail proceedings are sui generis. The State is thus not

obliged in its turn to produce evidence in the true sense.

It is not bound by the same formality. The Court may

take into account whatever information is placed before

it in order to form what is essentially an opinion or value

judgment of what an uncertain future holds. It must

prognosticate. To do this it must necessarily have

regard to whatever is put up by the State in order to

decide whether the accused has discharged the onus.”

The Constitution of South Africa provides that no person ought to be deprived

of his freedom arbitrarily and that if it is in the interest of justice an arrested

person is entitled to be released from detention on bail. Nevertheless, the

provisions of Section 60 of the Act have been promulgated to regulate the

10 granting of release from detention in respect of serious crimes and must

accordingly be implemented with due regard to the guidelines provided by

the Act itself and decided cases.

Having approached the totality of the evidence and applying case law

the Court has to come to the conclusion that there is a prima facie case

against the applicant and that the applicant has failed to discharge the onus

on him to prove on a balance of probabilities that exceptional circumstances

exist for purposes of Section 60(11)(a) of Act 51 of 1977.

Therefore the Court will not even venture into the second leg of the

inquiry to establish whether the interest of justice will permit his release on

20 bail and BAIL IS ACCORDINGLY DENIED.

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MR NGCOBO As the Court pleases.

PROSECUTOR As Court pleases.

COURT Mr Ngcobo?

MR NGCOBO Can we rather stand down so that I can take instructions

from client?

COURT Sure. We don’t have anything else to proceed with.

PROSECUTOR At this stage, Your Worship, no, but can we just take a brief

adjournment?

COURT Sure. Court will adjourn.

SHORT ADJOURNMENT

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ON RESUMPTION

PROSECUTOR 21 December for ...[indistinct]

10 COURT Mr Ngcobo?

MR NGCOBO That is true.

COURT Thank you. Mr Govender, matter remanded 21 December 2018 for

investigations. In custody. Thank you.

ADJOURNED TO 21 DECEMBER 2018

This is, to the best abilities of the transcriber a true and correct transcript of
the proceedings, where audible, recorded by means of a mechanical
recorder in the matter:

STATE v MUDRAY GARY GOVENDER

10
CASE NO : EMZ607/18

COURT OF ORIGIN : EMZUMBE

TRANSCRIBER : L GREEFF
20

DATE COMPLETED : 18 DECEMBER 2018

NO OF CDs : 1

30
NO OF PAGES : 13

LYNETTE GREEFF

CONTRACTOR
Sneller Recordings (Pty) Ltd. Durban  103 Jan Hofmeyr Road  Westville 3630
Tel 031 2665452  Fax 031 2665459
 IN THE MAGISTRATE’S COURT FOR
THE DISTRICT OF LOWER UMFOLOZI

HELD AT EMZUMBE

CASE NO : EMZ607/18
10

DATE : 28 NOVEMBER 2018

BEFORE : MS E BOTHA

STATE VERSUS : MUDRAY GARY GOVENDER

20
CHARGE : AS PER CHARGE SHEET

PLEA : AS PER CHARGE SHEET

ON BEHALF OF STATE : MR NQATHI[?]

30 ON BEHALF OF ACCUSED : ADV WOLMARANS

INTERPRETER : MS P PAKKIES

REPORT ON RECORDING
Prosecutor microphone not working and/or prosecutor too far removed
from microphone. Appearances placed by prosecutor unclear and
incorrect names indicated on protocol.

CONTRACTOR
Sneller Recordings (Pty) Ltd. Durban  103 Jan Hofmeyr Road  Westville 3630
Tel 031 2665452  Fax 031 2665459