GQEBERHA – The matter of the police officer attached to the Directorate for Priority Crime Investigations (DPCI), also known as the Hawks, appeared before the Gqeberha Regional Court with a smile on his face, seemingly after seeing familiar faces among people in court.
The officer, Xolani Busakwe (accused number six), is facing serious organised crime charges in what is an intricate matter with seven accused, namely Simthembile Xungu, his younger brother Ayabulela Busakwe, David Mthembu, Buhle Mbini, Andile Mathumbu and newly added Unathi Mayi (accused number seven).
The matter proceeded today, 16 October for what was supposed to be the closing arguments between the State and the defence before the presiding magistrate, Thabiso Mpimpilashe, can make her decision on whether to grant Xolani bail. However, the matter was postponed until Monday.
Accused denies gang links & murder involvement
The legal representative of Xolani, Advocate Sibongiseni Zimema, read out an affidavit in court made by the accused, which was made to oppose some claims that were in the State’s affidavit, made by investigating officer Warrant Officer Leon Eksteen.
Zimema explained that the accused does not intend to oppose everything that is in the State’s affidavit, because in the view of the accused, most of it does not relate to him.
“I must outrightly deny that I am a member of any criminal gang,” he said. “I must also outrightly place before this court that I am not involved in the murder of the prosecutor [Tracy Brown], that is why I am not charged with murder.”
Xolani’s affidavit also stated that he is not a member of the Digital Forensic Investigations (DFI) unit as stated in Eksteen’s affidavit, but he confirmed that he works in the Organised Technical Crime (OCT) unit and does not work with cellular devices. “My job entails conducting online investigations,” he claimed.
On the matter regarding the relation he shares with one of the accused, he confirmed that Ayabulela, also known as accused number two, is his younger brother, who he is allegedly close with.
“By virtue of him being my family member, he has access to me, my house and cellular phone,” he claimed.
Regarding the claim that Xolani has two cellular devices, he disputed this, stating that he has one cellphone that contains two SIM cards, one primarily for data purposes. He alleged that Ayabulela “has access to both my numbers. In fact, at some stage, he didn’t have WhatsApp, so this meant that if he had to communicate with someone on WhatsApp, he used my phone.”
Disputes over car purchase & cellphone tower evidence
In addition to the claim that he bought a car with the proceeds of the ransom money, he denied this, stating that he never personally communicated with the car salesman, alleging that Ayabulela must have been the one to communicate with the salesman using his phone.
“Because I had a BMW motor vehicle, Ayabulela informed me that he wishes to buy a second-hand BMW and I must accompany him to the dealership for the purposes of giving him my opinion of the state of the car,” his affidavit stated.
It added, “I genuinely believed that he had the means to buy the car, as he runs a tavern and taxis that run on his behalf.”
The State alleged that Xolani returned to Pretoria in the BMW, which was allegedly purchased with ransom money and registered in the name of St Albans Correctional Facility warder Lungile Jika. According to the State’s affidavit, Jika was allegedly given money to purchase the vehicle in his name by Ayabulela.
Xolani, however, alleged that his Toyota Etios had broken down while he was in Gqeberha. He said Ayabulela had suggested that he use the BMW to return to Pretoria, as he had a reason to travel to Gauteng at the time and would collect his own vehicle when he went there.
He further disputed the claims the State made regarding his cellular device pinging at the Kariega cellular tower. “I dispute communicating with any of the accused, as I said before, Ayabulela has access to my device. It must have been him who communicated with Mthembu, Mbini, Mathumbu.”
His affidavit added that during his leave from work, he said he would be at home in Motherwell. He added that just because he said he would be home, it doesn’t mean he was not allowed to leave to visit family or friends.
Regarding his cellphone allegedly pinging at the Uitenhage RSV cell tower approximately 700 metres from where Theresa Minnie was kidnapped, he said he has a girlfriend who resides in KwaNobuhle and his uncle resides in Kariega as well, which he said explains his presence in Kariega.
His affidavit further disputed the allegations made by the State that he was found in possession of case files that were taken from the SAPS Mount Road station. “Those were files I was working on, so I do not see how that could have been theft. Investigators take files home with them all the time,” he claimed.
He also claimed that his release on bail would not harm the case, as he was already out while the other accused had been arrested for a year, stating that if he was going to interfere with the trial, he would have already done so.
State requests postponement to respond
The State requested a postponement in light of these new submissions, saying that they require time to analyse the new affidavit made by Xolani and respond to it effectively.
Although Zimema told the court that a further postponement would be unfair to the accused, Mpimpilashe stated that it is in the interests of justice to grant the postponement to allow the State to respond to the applicant’s reply.
The matter was postponed until Monday, 19 October, for the continuation of the bail application, with Busakwe remaining in custody along with the other six accused.
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