Thabo Bester saga — Bloemfontein high court overturns ruling, grants three accused bail

Three more accused in the Thabo Bester escape case were granted bail of R10,000 each on Wednesday.

Former G4S employees at the Mangaung prison Senohe Matsoara and Tieho Makhotsa, and Teboho Lipholo — a former employee of CCTV service provider Integritron Integrated Solutions, were previously denied bail at a hearing in May this year.

They face Schedule 5 charges of corruption related to accepting bribes and aiding the escape, among other charges. The Bloemfontein Magistrates Court previously found that Matsoara, Makhotsa and Lipholo did not provide sufficient evidence that they would not interfere with state witnesses. The three then appealed the decision in the Bloemfontein high court.

On Wednesday in the Bloemfontein high court, Judge Joseph Mhlambi set aside the previous ruling in May and awarded the three bail.

Judge Mhlambi found that the accused were not flight risks and that there is no likelihood that they would interfere with witnesses or undermine the criminal justice system.

During the bail application in the Bloemfontein Magistrates Court, the state presented oral testimony by Lieutenant-Colonel Tieho Flyman, opposing bail on the grounds that the accused are a flight risk, may attempt to influence or intimidate witnesses, jeopardise the functioning of the criminal justice system, and disturb the public order or undermine the public peace or security should they be released on bail.

According to Flyman, all of the accused were involved in helping Bester escape. Flyman had testified that bail should be opposed because the matter was high profile and had also captured Parliament’s attention.

“The community viewed the police as not doing their work and was enraged, saying that bail should not be granted to the accused. [Matsoara] was scared for his life especially from harm by his co-accused. The community would frown upon the justice system and potentially take the law into their own hands should the accused persons be released on bail,” he told the court.

In the high court appealing the ruling, Advocate Kagisho Moruri, for Matsoara and Makhotsa, argued that the previous court “misdirected itself” by finding that the accused might attempt to evade trial if released on bail. He said that Matsoara and Makhotsa had fixed addresses and surrendered their passports. He further argued that there was no evidence that Matsoara and Makhotsa would attempt to influence or intimidate witnesses if they were released on bail.

Moruri said that despite Flyman’s fear that public violence may be sparked by Matsoara and Makhotsa’s release, “hardly 50 people showed up in court on the one day of the bail proceedings, namely, the 11th of May 2023”.

Lipholo’s attorney argued that the presiding officer failed to evaluate and analyse the personal circumstances of each applicant. He argued that the court overlooked that the investigation was still in its infancy.

The state argued for the appeal to be dismissed, emphasising the nature and seriousness of the crimes, and that there was a likelihood that their release would undermine public peace or security.

Judge Mhlambi, in his ruling, said that when considering whether an accused is a flight risk, the court may, where applicable, consider the accused’s emotional, family, community or occupational ties to the place where they are tried, and the means and travel documents held by the accused, which may enable them to leave the country, among other things.

Mhlambi said that these factors had not been evaluated in the ruling in which they were denied bail.

“Nowhere in the judgment was any consideration given to the imposition of suitable conditions as an alternative to refusing bail altogether.”

During their bail hearing in the Bloemfontein Magistrates Court, the accused argued that they did not know the state witnesses. The magistrate rejected this in his ruling, but Judge Mhlambi found that this was “misdirected”.

Mhlambi noted that since co-accused Nastassja Jansen and Zolile Sekeleni’s bail release, there has been no public outcry or disturbance.

Lipholo, Matsoara and Makhotsa bail conditions prohibit them from contacting any witnesses. They also may not leave Bloemfontein without the permission of the investigating officer.

To date, 12 people stand accused in the Bester saga and are expected to appear together in court on 8 August. They face a total of 16 charges. DM

First published by GroundUp.