‘Warning was inadequate’: Kekana’s defence fights use of bail record in Matlala trial

The lawyer representing Vusimusi “Cat” Matlala’s co-accused Musa Kekana has challenged the use of his bail proceedings in the ongoing trial within a trial, arguing his client was not properly warned the contents of an affidavit could later be used against him.

Kekana is charged alongside Matlala, his wife Tsakane Matlala, Tiego Floyd Mabusela and his daughter Nthabiseng Nzama. They face 25 counts, including conspiracy to commit murder, money-laundering and the attempted murders of actress and Matlala’s ex-girlfriend Tebogo Thobejane and taxi boss Joe “Ferrari” Sibanyoni.

A trial within a trial is under way in the Johannesburg high court examining the evidence collected when Kekana was arrested in 2024 for the murder of Vereeniging engineer Armand Swart. The trial within trial will determine whether evidence collected during the arrest can be used in the case Kekana is currently facing with Matlala and others.

Advocate Riaan Gissing told the court on Tuesday the magistrate’s warning during Kekena’s bail application for Swart’s murder was inadequate.

According to Gissing, the warning referred to giving evidence but did not specifically explain the implications of evidence contained in an affidavit.

“I submit, my Lord, with respect, that the warning given to [Kekana] at that stage was inadequate and as such the evidence, or rather the transcript, should be disallowed on that particular basis,” Gissing said.

He argued the warning appeared to contemplate oral testimony under oath rather than evidence presented in affidavit form.

“It’s a peremptory duty of the court, right at the beginning of the proceedings, to warn him fully and comprehensively.”

Gissing said the warning should enable an accused to make an informed decision on whether to testify orally or make use of an affidavit.

“It is clear from the transcript what the magistrate warned the applicant, or rather accused number one of, and it is evident and clear from the cited case law that there should be a differentiation made by the magistrate during the bail application,” he said.

Prosecutor Elize le Roux rejected Gissing’s argument, saying the warning given to Kekana was sufficiently broad.

“This is an attempt from a friend on a legal basis that can never be sustained,” Le Roux told the court.

“If you give evidence during your bail application, that evidence will form part of the case record. It can be used against you during your trial or subsequent court proceedings.”

Le Roux said the word “evidence” should not be restricted to oral testimony.

“My Lord, I would say the evidence the accused presented during the bail application is wide enough to say if you give evidence, whether it be oral or under affidavit, evidence is evidence,” she said.

“The section itself is wide enough to contain both.”

Judge Cassim Moosa said the court would consider the competing submissions.

“The court needs to consider the arguments that have been raised for and against the admission of this document,” the magistrate said.

The matter was postponed until Tuesday to allow the court to consider the arguments.

Sowetan