- Lawyers representing one of the men accused of the murder of Hillary Gardee, Lawrence Mkhatshwa, have withdrawn in the middle of his bail application.
- Mkhatshwa asked the court whether he would be compelled to continue with the application from where they left off.
- The magistrate warned him that whatever he said so far could be used against him.
There was an unexpected twist in the bail application of one of the men accused of the murder of Hillary Gardee, the daughter of former EFF secretary-general Godrich Gardee, in the Mbombela Magistrate’s Court on Friday.
Attorney, Sebastian Bhila, and advocate, Sifiso Silindza, who represented Lawrence Sipho Mkhatshwa, withdrew from the matter due to a conflict of interest.
“There is a conflict of interest in this matter. I request the court to excuse me from the proceedings. I can’t disclose that conflict of interest. I don’t want to prejudice Mkhatshwa and myself,” Bhila told Magistrate Edward Horn.
Mkhatshwa remains under oath because his cross-examination by prosecutor Ntsika Mpolweni is expected to continue.
READ | Hillary Gardee murder: ‘I don’t know how to operate a gun’ – accused says he’ll prove innocence
Mpolweni asked the court to warn Mkhatshwa that he remained under oath.
“One wonders whether Mkhatshwa can consult with his new lawyer regarding evidence tabled in court. There is a thin line there and we need to decide how to approach the matter.
“We will have to explain that he will consult with his new lawyer while he remains under cross-examination. If he decides to abandon bail, it must be explained to him what will happen to the record because that record will not disappear. The evidence tabled in court will be used against him at a later stage,” Mpolweni said.
But Mkhatshwa told the court: “I hope to have another instructing attorney, and we may not continue from where we stopped. My new lawyer would want to tackle the case from a new angle and start the bail application afresh.”
Bhila informed me about his withdrawal. It is due to a conflict of interest he has in this case. I don’t know what that conflict of interest is. I understand his position.
“If he wants to withdraw, he has a right to do so. He is at liberty to exercise his constitutional right. If he needs to be released, so be it. I have no objection,” he added.
He asked whether, in the event of an objection, the court would compel him to continue where the bail hearing had stopped.
“The truth is the truth and it doesn’t depend on what I say. I understand the consequences that whatever I say may be used against me in future. My new lawyer will have to balance what is on record and the new approach he might bring to court.
“It is prudent for the honourable court to postpone the matter while I find a new attorney. I will discuss whether I [will] abandon or continue with the bail hearing with my new lawyer,” Mkhatshwa said.
READ | Hillary Gardee: Police ‘tortured and electrocuted me for a while’ – accused alleges in court
Horn addressed him and said: “You will appreciate and understand why Bhila was in court, because you instructed him to represent you. He has requested to be granted permission to withdraw from the matter.
“He says there is a conflict of interest between you and him. Are you not surprised by his withdrawal?”
Horn also asked Mkhatshwa if he understood that if Bhila withdrew, Silindza would also have to withdraw.
“It is very rare that the court forces someone to continue with the matter he has a conflict with. Due to the nature of the conflict that Bhila doesn’t want to divulge in court, should I permit him to withdraw, I will have to explain to the applicant what the next step is,” he said,
He told Mkhatshwa: “You may elect to instruct another attorney. This application will continue from where we stopped. If you can’t afford a lawyer, you can apply for Legal Aid. You may also elect to represent yourself.”
“If you want a Legal Aid representation, the matter will have to stand down and see if you qualify for Legal Aid services. The records can be transcribed for your new lawyer.
“You are still under oath. It doesn’t mean your new attorney can’t take proper instructions. We are in the middle of a bail application. You can abandon the bail application, and it will stop.
“I am reminding you that whatever you said during your application may be used at a later stage. Bail applications can be abandoned, and it doesn’t mean you can’t bring another application,” Horn told him.
“During your new bail application, you may be questioned about what you said previously under oath. You have to explain to your new attorney the proceedings and where we are at this stage,” he added.
He warned Mkhatshwa to bring his new attorney to court for his next appearance.
Mkhatshwa, Philemon Lukhele and Mduduzi Gama are accused of raping and killing Gardee in April.
The men face charges of conspiracy to commit murder, murder, rape, kidnapping, possession of an unlicensed firearm and ammunition.
They are expected back in court on 9 June.
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