Durban: After spending more than six months in jail, a Phoenix man charged with two counts of attempted murder following last July’s unrest has been granted bail.
Justin Lee Pillay, 33, of Ambleplace Place, was also charged with malicious injury to property.
According to the charge sheet, Pillay allegedly intentionally and unlawfully damaged a VW Polo Vivo belonging to Khayalethu Sikanyela, valued at R100 000 on July 12.
It is further alleged that he struck Sikanyela and Vuyani Mbenswane with an object that could have been a baseball bat, a bush knife, a golf stick, or something similar.
Pillay, an assistant manager at a petrol station, was charged in September. A month later, he was denied bail in the Verulam magistrate's court. He appealed the ruling last Wednesday at the Durban high court.
In his arguments, Pillay's legal representative, advocate Louis Barnard, instructed by Chetty, Asmall and Maharaj Attorneys, said the magistrate in the Verulam magistrate's court had erred in denying his client's bail.
He said the magistrate had made a mistake in finding that Pillay was a flight risk, that his release would undermine the functioning of the criminal justice system and that there were concerns over his safety if he was released on bail.
Barnard said Pillay stated in his affidavit that he was not a flight risk and that he would stand trial.
“He further took to the witness stand and opened himself up to be cross-examined to give the State the chance to challenge any of the issues raised in his affidavit and to confront him with any concerns which they may have regarding his possible release on bail.”
Barnard said the state posed only one question to Pillay that related to whether he would still be employed if released.
He said it was never put to Pillay that he posed a flight risk, his release would endanger the safety of the public, undermine the system, or that he posed a risk to himself.
“It is therefore submitted that it ought to have been found that these issues were not in dispute.”
Barnard said Pillay had also provided an alibi, which was checked by the investigating officer. He said the investigating officer had secured an affidavit from Pillay’s mother who confirmed that he was at home at the time of the incident.
Barnard said there was also no evidence placed before the court to justify a finding that Pillay’s safety would be at risk if he was granted bail as there were no protests during his court appearances.
He said the magistrate was wrong to find that Pillay’s release would endanger the safety of the public, as he did not have prior convictions for offences that involved violence.
“It is further submitted that the learned magistrate erred in this regard when he found that the appellant (Pillay) resolved the pending malicious injury to property matter by way of an alternate dispute resolution was tantamount to an acceptance of guilt.”
Barnard said the magistrate further erred to consider suitable bail conditions as an alternative to incarceration pending the trial.
In his responding arguments, Krishan Shah, a senior state advocate, said the magistrate misdirected himself by finding that Pillay was a flight risk due to past conduct and the pending case.
He said the magistrate failed to consider that Pillay was in fixed employment with the same employer for about six years and supported himself financially.
Shah said Pillay’s explanation regarding the malicious injury to property matter being finalised was important and should have been taken into consideration.
“It is further submitted that the learned magistrate misdirected himself in finding that the release of the appellant on bail would endanger himself, noting that it is the state's case and that there were no protests or threats against this particular appellant,” Shah said.
“It is further arguable that the magistrate misdirected himself in finding that the personal circumstances which are common cause did not satisfy the threshold permitting the appellants release on bail."
The magistrate's decision was set aside. Judge Mahendra Chetty granted Pillay R3 000 bail.
Pillay’s bail conditions include:
- Reporting to the Phoenix police station every Friday.
- He is not allowed to make any applications for travel documents.
- He is not allowed to leave the province without informing the investigating officer.
- Does not influence, interfere or intimidate any of the complainants or state witnesses.
Pillay is expected to appear back in the Verulam Magistrate’s Court.
IOL