Protea Court Soweto will once again be the focal point as the bail applications of hip-hop artist Molemo Maarohanye, known as Jub Jub, and co-accused Themba Tshabalala enter into their second day. They are currently being held on charges of murder and attempted murder.
These arise out of a horrendous incident which took place in Mdlalose Street almost a fortnight ago.
The allegations are that two Mini Coopers, then being driven by the pair, were racing along the two-way street which runs between Protea Glen and Protea North — with one in each lane but parallel to each other. A car approached from the opposite direction leaving the Mini on the wrong side of the road with no place to go. As a result the driver tried to swerve back into the left-hand lane but only managed to crash into the other Mini.
Both vehicles then ramped onto the pavement and mowed down four young boys who were walking home from school with two other friends. The youngsters aged between 17 and 19 were still in their school uniforms at the time. Police confirmed that four of the boys were killed while the other two are in a critical condition having sustained multiple fractures and head injuries. Three of the boys killed were from Jules High School in the Johannesburg CBD and one from Altmont High School in Protea North.
Understandably emotions are running extremely high in Soweto with police on Wednesday being forced to fire rubber bullets at protesters after they started banging and jumping onto the police vehicles that were parked outside the court with 5 schoolboys being arrested.
That tension will undoubtedly be carried into Thursday as the bail applications continue.
Vital to the public’s understanding of what is happening today is the fact that they comprehend that these are bail applications and not the trial where the guilt or innocence of the accused is determined.
Accordingly the primary question that falls to be decided is whether or not the pair presents a flight risk or will stand their trial.
In order to answer that — while taking other factors like the possibility of being killed by the public, chances of interfering with the witnesses or investigation into consideration — the presiding officer will need to hear evidence adduced by the applicants and the state, who are opposing bail, why it should or should not be granted.
In this regard the first thing that the magistrate needs to decide is what schedule these crimes fall under in terms of the Criminal Procedure Act 51 of 1977 as amended (the act).
As I am not aware of the two having committed previous crimes I will assume that for this bail application they are facing charges under Schedule 5, which is the usual schedule for the crimes with which they are being charged unless other factors come into play.
The importance of this is that Section 60(11) (b) of the Act provides that where the accused is charged with a Schedule 5 offence the onus lies with the state. The ordinary burden of proof that the interest of justice would be best served by the continued detention of the accused remains with the state until such time as it has shown the offence with which the accused is charged to be one that falls within Schedule 5. The state may discharge this burden by giving a full and proper description of the alleged offence in the charge or by leading evidence or by resorting to a certificate from the director of public prosecutions in terms of section 60 (11A) of the Act.
If it is a Schedule 6 that changes in terms of Section 60(11) (a) of the Act which provides that where the accused is charged with an offence which falls within Schedule 6, he carries the burden of satisfying the court on a balance of probabilities that “exceptional circumstances exist” which permits his or her release on bail, in the interest of justice.
The likelihood here is that these are Schedule 5.
Section 50 of the Act is the one that the public are familiar with in that it deals with the provisions requiring the state to bring the suspects before court within 48 hours and the fact that they are entitled to apply for bail.
Section 60 of the Act is the one that is critical for our purposes because it sets out what the parties to the bail application have to establish in order for bail to be achieved or denied ie the factors the magistrate will take into account when making his decision.
Section 4 gives the overall outline but in order to gain a full understanding regard must be had to the act, prevailing legislation and case law which has interpreted the acts.
(4) The interests of justice do not permit the release from detention of an accused where one or more of the following grounds are established:
(a) Where there is the likelihood that the accused, if he or she were released on bail, will
endanger the safety of the public or any particular person or will commit a Schedule 1
offence.
(b) Where there is the likelihood that the accused, if he or she were released on bail, will
attempt to evade his or her trial.
(c) Where there is the likelihood that the accused, if he or she were released on bail, will
attempt to influence or intimidate witnesses or to conceal or destroy evidence.
(d) Where there is the likelihood that the accused, if he or she were released on bail, will
undermine or jeopardise the objectives or the proper functioning of the criminal justice
system, including the bail system.
(e) Where in exceptional circumstances there is the likelihood that the release of the
accused will disturb the public order or undermine the public peace or security.
Once the magistrate has heard all the evidence he will then decide whether the accused are entitled to bail in all the circumstances in accordance with the law and not whether the public like it or not.
That is why it is important to the police and the criminal justice system that the public understand that the people who are upholding the law are not being difficult or arrogant but rather — to the best of their ability — applying the rules of the legal system that society has entrusted to them.
Accordingly if Jub Jub and Tshabalala are released rather than throwing up your arms go through the reason for the decision and try to understand why it was done.
It has no impact on the trial to decide their guilt or innocence as far as the public is concerned.
I can understand them being release on bail, on these terms. How ever, what are the chances that these guys once released are necklaced?, killed or other wise maimed by the angry mob of idiots outside that court room. guilty or not they do deserve a trail, before a court of law. And not the mob justice which may well await them, this is not exactly an unrecognisable face.
I’ve never understood the reason for bail. How did it originate? Why? Was it perhaps just way for authorities to raise money? Can you explain about the legal philosophy behind this idea of bail? We waste a lot of court time on complicated bail hearings. Wouldn’t it speed things up if we just got on with the trial? This is not some technically complicated white-collar crime case. For goodness sake, why can’t they just get on with it?
Bail? I don’t think so. However, there may be a greater concern here. Despite your defense of the murder charges, Traps, I don’t think they will hold up in court. Either they’ll plead down to manslaughter or there will be a mistrial because the prosecution was conducted on the wrong charges. Yes, they were high at the time. Yes, they were reckless. But did they set out that day to KILL anyone? I doubt it.
More appropriate charges could still result in life sentences —f served successively.
For example, a successful prosecution for manslaughter against both drivers could get them eighty years in jail (each) if they are convicted on four counts of manslaughter.
Add the culpability for driving whilst under the influence of drugs and/or alcohol which brings a charge of gross negligence–one count for each drug or unit of alcohol over the legal limit–and they could get another 10 years, Add to that the drugs were either illegal or obtained illegally and the years keep piling one.
If, on the other hand, the intention is that they should ‘get off’, the best way to guarantee that is to bring the wrong charges so that the cases are thrown out of court or are forced to be re-tried on other grounds.
Juju’s bizarre visit to JubJub communicates one of 2 things: Jub Jub is protected or Juju is worried by something Jub Jub knows.
Betting window is now open.
To avoid all the emotions why not hold the bail hearings and trial itself away from soweto- in Pretoria say.
Nobody would organise a Toi Toi there.
Not a chance. s4(e) pretty much describes it – although of course we could argue that public order issues are actually worse now he’s in court and will surely calm down once the schoolkids do whatever it was that they were shouting about the last couple of days…
Seriously though, I think letting this guy out on bail is a very bad idea, both for his own safety and the potential for interference. He clearly has powerful friends, no?
As an aside, what is this business of Julius visiting the pair in prison bearing gifts of chicken? I would have thought it would have been an ideal opportunity to spray some of his famous oratory and get the angry children back at school. Maybe if he had attended yesterday with some of his convincing words and helped maintain order, the accident where a boy was killed supposedly hitching on a truck to get to the court might have been prevented.
But alas, it was not to be. Did one J.S. Mayhem look down and find himself pleased with what he did see?
My brother u a not innocent until proven guilty. A case can take years to prove/ finalise. Therefore imagine spending time in jail for that long and then u a told not guilty, That would be bull! So it was decided people will be granted bail based on the conditions made above, therefore even if they are not found guilty, their freedom was not detoured for that long!
They must be granted bail coz the public will kill them and it will be unfair for the victims.
They are clearly guilty, so just sentence them and stop wasting money.
In South Africa you are innocent until proven guilt by the court of Law, not the mob, media, politicians trying to score cheap votes. The requirements for bail stated above are fare. Why must you stay in jail for two to five years only to be found not guilt. What has happen to the school kids is unfortunate and should not happen to anyone. If you look at this accident the court can easily found one driver guilty, Remember the other car was driving in the correct lane and hit by the other car. The fact that they were speading does not automatically mean they were drag racing.
Jub Jub says Tshabala is not a friend but a distant acquaintance, and that he was not high on coke or alcohol. He denies responsibility and on his lawyers wise instruction will not discuss the details of the áccident’. Presumably, at trial he will claim that he never even saw another Mini Cooper approaching in the other lane and that the first thing he knew he was being rammed on to the pavement by the other car. Does this sound like a plausible defence to you Traps? It does to me, even if if it rings a bit hollow. End result, Jub Jub walks.
he deserves a trial, so he can go to prison and get tb. [tb being the least of his biological worries, given the state of south african prisons.]
releasing him on bail may put things into place which would spare the state the expense of a trial. yeah, that’s how i’ll say it. even if he went into hiding with his semi-fugitive mother, they’d still get him.
Give them bail. I strongly suspect that the outraged teenagers are being mobilised for the occasion.
Svendude, have you ever been tried for anything? If you haven’t, you won’t realise that being in prison is not the best place to prepare your defence. There is no need to keep anyone in prison in order to put them on trial.
@Svendude
The justice system in SA is so bogged down that the actual murder trial could take years to conclude.
I don’t believe the murder charges will stick because there was no intent and there was diminished responsibilty as the accused were under the influence of alcohol and drugs (in the case of Jub Jub I submit that the opiates were from a prescription drug and that he had taken an overdose).
It would be unjust for a person to be denied bail only to be found ‘not guilty’ after 2+ years in remand prison.
Yes, Jub,Jub said he was not dicing and was not on drugs, so one must believe him, ney?
I commend you for outlinining the bail procedure, this should really be explained to the public so we do not have protests in every case. Schedule 5 Bail application put the onus on the accused to show on a balance of probabilities that his release will be in the interest of justice as opposed to schedule 6 which requires that the accused show that there are additional exceptional circumstances for him to be released on bail. The conditions in section 60(4) outlined in your article will be considered by court to see if accused has shown the interest of justice. In all likelyhood I believe if Jub Jub can provide a different address away from Soweto, bail can be granted, as it seems the state is relying on his safety to refuse him bail and the danger concentration is in Soweto now. Our people need to know that bail is an interim arrangement premised on the idea that accused person is still innocent, the accused is therefore not acquited of the charge if he is granted bail, he will still be dealt with by the court which still has to determine his guilt or innocence.
Can the media kindly refrain from calling this man Jub Jub, it trivialises an otherwise serious crime that this man has commited and makes him sound like a loveable cartoon character.
No bail!
@elen. No offence but if I were him I’d rather say I was high and not in full control of my sense and killed four kids while being a bloody fool. So your saying he was not drunk, or high drag raced down the wrong side of the road, while in full control of his sense, and killed 4 kids as a result. That sounds like murder to me.
Seems people forget that the legislation is there to protect them in the event that they are arrested for some misdemenour, intended or not, and hauled in front of a court.
One can’t be selective about when and to whom the law applies and when it doesn’t. The granting of bail does not imply innocence, but does assume innocence until proven guilty.
Its funy how our justice system works.Our roads are full of accidents because of people who are self centered when using them.
1.Jub jubs friend was under the infulence of alcohol thats a fact.
2.Jub Jub was high on drugs,another fact.
3. They killed innocent kids who were going to make something out life one day.
Regardless of who hit who and collided where but the crux of the matter is they are both responsible for the death of innocent kids&they need to be punished, people won’t learn to be considerate on roads if the law goes easy on them.
With evidence on hand this doesnt even deserve bail hearing it needs a very quick prosecution they must be locked&keys must thrown far away so that people will learn, Mandoza did the same thing just becase he’s famous he got away with it,Sfiso Zulu did the same,2 students from MUT were killed&others left critically injured,he lied saying it was his driver not him but evidence was there and ignored cause he’s from royalty&rich , for how long will these rich and famous get away with murder under the influce of drugs&alcohol,give us a break from this iresponsible senseless bastards who only thinks for themselves,till when will South Africans not be free on roads we pay tax 4?
I think this is a fantastic article. I just wish this type of information was highlighted in the papers because the public really needs to have a sober look at these circumstances. It is grossly unfair to those involved that the press insinuate their guilt before the trail has begun. Now there’s a bunch of students running amok and missing out on valuable school time, for all the wrong reasons. Give Molemo and his friend bail because they are entitlesd to it like every other South African.
I am more outraged by the way in which the teachers union are using the youth for their own ends. The teachers union protect incompetent teachers, they are now trying to get comrades appointed to the very highest level at government schools and they have by their actions helped to bring education to its present state. 2007 only a little more than 3% of black matriculants were able to pass a basic literacy test. It is probably far worse now. These unions are taking away the youth’s future and using them to entrench their power.
That should read 30% of matriculants. Source Adv Paul Hoffman-Intitute of Accountability South Africa.
If Jub Jub was to do a runner and end up in say Britain, he could have compelling reasons for not being sent back :
1) He is unlikly to get a fair trial due to all the publicity.
2) Inhumane prison conditions in SA.
3) A trial of this kind will be subject to constant postponements meaning he will not be able to lead a normal life for years.
4) A very real possibility that his life will be in danger from vigilanties.
Would I grant Jub Jub bail?
YES!
I’m actually surprised such a meal of it is being made. I thought he would have been bailed the first day he appeared before the magistrate.
He’s not the first drunk driver to run over pedestrians. Back about 20 years, a friend of my brother’s drove into a brick wall while he was drunk. His passenger was killed. The incident was never even investigated, nor was the driver arrested.
My optician says I am myopic so i will believe him. But I saw a Pay your TV licence ad on SABC that day where a young man is stopped for speeding and he claims to be rushing to pay for his TV licence before claiming that his lady is in labour. Please tell me thats not Jub Jub !! For all the love of licence revenue does SABC have to flight it at this time? Vulture marketing ?