Western Cape High Court Judge Nomfundo Sipunzi has reserved judgment in the bail application appeal of the accused in the murder of controversial businessman and alleged underworld crime boss, Mark Lifman.
Counsel for the accused has argued that the court of first instance had erred in not granting the pair bail.
The George magistrate’s court denied bail in January.
Advocate Michael Hellens SC says the George magistrate’s court misdirected itself by concluding that his clients placed their reliance on the weakness of the state’s case in their bail application.
He further submits that the magistrate erred in finding that the two had failed to prove exceptional circumstances justifying their release on bail.
Counsel for the appellants, Advocate Michael Hellens SC, says, “Exhibit E then is an analysis of the state’s heads of argument in so far as the state opposed bail in particular on the merits of evidence or the strength of their case. Now, the magistrate held that exhibit E was not evidence, and therefore disregarded exhibit E in its entirety, saying that relying on Matebula, if we wish to get bail by attacking the strength of the state’s case, we need to put evidence before the court. But our application was not based on a weakness of the state’s case. Exhibit E was simply a reaction to what was put before the court by the state with regard to the strength of this case. So it obviously was not evidence, but it was a critical analysis of the investigating officer’s case against bail, in particular on the strength of the state’s case. So the magistrate completely misdirected himself by disregarding Exhibit E.”
He also went on to submit that his clients were not flight risks.
The pair was arrested near Uniondale shortly after the shooting, allegedly fleeing in a white VW Polo.
“This car, if it is the same car, is alleged to have gone from the Garden Route Mall to where the arrest took place. It’s supposed to have a firearm in it if a firearm was used from that car to shoot the deceased. The firearm is not there. It’s not a fact against bail. It’s a fact for bail. It is one of the fundamental difficulties in the state’s case. If the firearm was used from that vehicle to shoot the deceased, then where is it? It should be in the vehicle, but it’s not. So, there’ no evidence of the firearm being disposed of or anything at all. It’s a complete lacuna, a hole in the state’s case.”
The state argues that in balancing the evidence presented in the bail application, it would not have been in the interest of justice to release them on bail.
Counsel for the respondent, Adv. Evadne Kortje says, “They keep on bringing in this appeal – a play between the strength of the state’s case. Now, if I follow the counsel’s argument correctly, that is not a ground that they are basing their appeal on, but much has been said in arguing before this court on the strength of the state’s case. Now, in view of that, My Lady, it is going to be the state’s submission holistically, and that is what the magistrate had to consider when delivering the judgement holistically. The evidence presented by the appellants and by the state in this matter ultimately led to the magistrate coming to the conclusion that the appellants did not discharge their onus in providing exceptional cirecumtsances and then the second leg thereof my lady in failing to prove that, it would not be in the interestof justice to release them on bail.”
Lifman was shot and killed in the parking area of the Garden Route Mall in November last year, a day before he was meant to go on trial in Cape Town for the murder of “steroid king” Brian Wainstein in August 2017.
The pair is expected to appear in the Thembalethu regional court on the 1st of July.
