IN HIS latest bid to be released on bail, Durban security boss Ferrel Govender said despite allegations of gender-based violence (GBV) against him, the court had failed to call for a statement from his former girlfriend.
On Monday, Govender’s legal representative filed a notice of application for leave to appeal against the judgment handed down by Judge ME Nkosi in the Durban High Court last Thursday.
Judge Nkosi dismissed Govender’s appeal against the ruling made by a magistrate to deny him bail. Govender’s former girlfriend and the woman allegedly at the centre of the love triangle with him and slain businessman Shailen Singh has been named as Salona Ramrutton Kisten.
In January this year, Govender, 41, the group CEO of Pro Secure, and his brother, Darren, 35, were charged with Singh’s murder. Darren was granted R200 000 bail in the Durban Magistrate’s Court last month. However, Govender was denied bail and took the decision on appeal to the high court.
In the latest appeal notice, it was submitted that the judge on appeal had erred in one or more respects. It read that the appeal court should have found that the magistrate failed in his duty to apply provisions of the Criminal Procedure Act in regards to the records of the identity parade and to call for the statement of Govender’s former girlfriend.
“Regarding the failure to call for the statement by the former girlfriend, the appeal court ventures into the realm of speculation, when it speculates that it is ‘not uncommon for GBV to recant or destroy proof of the abuse when they are persuaded or pressured by their abusers to do so.
“Most victims of GBV end up regretting that decision when the abuse continues or gets worse often with disastrous consequences’.
“There is nothing in the evidence in the appeal record that justifies the appeal court in venturing into the realms of speculation.”
In addition, the notice read that the appeal court failed when it found that the magistrate “erred on the side of caution”.
“Caution dictated that in order to be able to rely on alleged abuse by the appellant of the former girlfriend that it was necessary to get to the bottom of whether the allegations in the video footage were true and placed in their proper context.
“Caution would have demanded the exercise by the magistrate of the discretion in this regard, which he failed to exercise.”
According to the notice, there was also no video footage showing Singh being shot several times at all by anyone.
“The above-mentioned fact vitiates the reason of this court regarding the alleged strength of the State cases.
“If one removes this faulty reasoning from the reasoning of this court, then one is left only with that which the appeal court appears to have neglected to take into account.”
According to the notice, this included contents from the investigating officer’s statement, in which he refers to the person who observed the shooting and gave a description.
“But it being common cause that the person failed to identify the appellant as the shooter. A second witness who allegedly identified the appellant (Govender) as being at the scene, but not as the shooter,” it read.
Further, in the appeal notice it is said that according to the investigating officer’s statement, one will find that a witness who alleged that he knew Govender, saw him in the vicinity of the shooting but did not observe any shooting.
“The investigating officer makes the enigmatic statement, which does not accord with the balance of his statement, that the appellant was identified as the fair Indian male who fired shots at the deceased.
“Whereas the appellant was at best identified as the person who at a stage approached the passenger side of the vehicle,” it read.
According to the notice, the appeal court had also erred by failing to consider any of Govender’s personal circumstances relevant to a bail application.
“But instead elected to singularity overemphasis the alleged strength of the State’s case…”
According to Judge Nkosi’s judgment, the State’s reasons for opposing bail were fully set out in an affidavit by the investigating officer,(Warrant Officer Kumarasan “Bob” Pillay of the Provincial Organised Crime Unit).
According to Pillay’s affidavit, the data downloaded from Govender’s cellphone showed that he had contacted Singh on two separate occasions on December 29, 2024. Pillay said in a statement taken from Singh’s wife, she indicated that he was accused of having an affair with Govender ‘s girlfriend, Salona Ramrutton Kisten.
He said Govender made several calls to Singh threatening to shoot him and several members of his family. Pillay said Singh’s father also confirmed that Govender threatened his son. He said investigations also revealed that on November 13, 2024, Govender threatened to shoot Kisten and Singh execution style in Singh’s yard.
He said there was evidence that Govender assaulted Kisten on numerous occasions accusing her of being in a relationship with Singh. He said the latest of these assaults happened in November 2024, where Govender mentioned his intention to have Singh killed. Pillay added that there was also evidence confirming cellphone communication between Govender and Singh moments before the shooting.
In his judgment, Judge Nkosi said he had to determine whether the magistrate exercised his discretion wrongly.
“Generally, it is trite that when considering an application for bail the court must weigh the interests of justice against the right of the accused person to his or her personal freedom.”
Judge Nkosi said it was argued by Govender’s legal representative Michael Hellens SC instructed by attorney Ravindra Maniklall during the appeal, that one of the key misdirections committed by the magistrate in the court was to distinguish Govender from Darren when they both had similar personal circumstances, business commitments, property, family commitments and strong roots in KwaZulu-Natal, particularly, in Durban.
Hellens further argued that the magistrate was influenced in his mind by what he perceived to be the strength of the State’s case against Govender, including his identification by two eyewitnesses at the crime scene at the time of the incident. He further said that although the one witness claimed to know Govender well, and to know him by name, the other witness who claimed to have seen Govender shooting Singh had positively identified someone else as the shooter at the identity parade.
Hellens said for this reason, the magistrate should not have relied on the positive identification of the one witness against the negative identification of the other witness.
In his judgment, Judge Nkosi said: “With respect, I disagree with Mr Hellens.”
He said according to the affidavit of the investigating officer, Govender himself admitted that he and Darren met at the parking lot around the same time when Singh was shot.
“It appears from the record that that is the same parking lot where the deceased was shot. Furthermore, there is nowhere in the appellant’s affidavit in support of his bail application where he denies having been present at the crime scene at the time when the deceased was shot…”
Judge Nkosi said this same point was made by senior State advocate, Krishen Shah, during the appeal.
“I am in full agreement with it. In the circumstances, the appellant’s silence leaves unchallenged the evidence of the other witness who claims to know him well and by name, and who informed the investigating officer that he saw the appellant walking towards the passenger door of the Toyota Hilux (Singh’s vehicle) prior to the gunshots going off.
“Bearing in mind that such evidence is corroborated by the evidence of the video footage showing the deceased being shot several times by the driver of the black BMW X5 who was standing on the passenger side of his vehicle.
“My view is that the only reasonable inference which could be drawn by the learned magistrate from the available evidence in its totality was that it was the appellant who fired the shots which killed the deceased,” he said.
Judge Nkosi added the question as to whether the evidence adduced by the Govender before the court a quo (magistrate’s court) was sufficient to satisfy that court that exceptional circumstances existed which in the interests of justice permitted his release on bail.
“In my view, the learned magistrate was meticulous in his weighing of the interests of justice against the right of the appellant to his personal freedom. In essence, he found that the right of the appellant to his personal freedom was totally outweighed by the interests of justice.
“Therefore, taking into account all the evidence that was led before the court a quo in its totality, I am not satisfied that the decision of the court to refuse the appellant’s bail application was wrong in any respect,” he said.