The State said the Govender brothers were grasping at straws, attempting to transform ordinary circumstances into exceptional ones, in order to be granted bail by the Durban Magistrate’s Court.
Ferrel and Darren Govender are charged with the murder of Shailen Singh, a businessman who was killed at Meridian Drive at Umhlanga, on December 29. Fourteen spent cartridges were found at the crime scene.
The Govenders are applying for bail which is under schedule six of the Criminal Procedure Act.
In its arguments, the State said the brothers, through their various affidavits, attempted to attack its case and to suggest at this stage of the proceedings there was an onus on it to provide supporting affidavits and affidavits authenticating evidence.
“There is no duty to the State to prove beyond a reasonable doubt at a bail application,” said control prosecutor Seema Reddy.
She said it was important to note that an attack on the State’s case is a path that, if undertaken by an applicant, must be taken to the fullest extent.
“It is not enough to allege that the State’s case is weak, the applicant is required to prove on a balance of probabilities that he will be acquitted,” she said.
She said advocate Christo van Schalkwyk SC, counsel for Darren, said the bail application for his client should be under schedule five of the Criminal Procedure Act.
However, Reddy said the evidence before the State indicates that Darren’s bail application is a schedule six offence. The court said it would look into this.
Earlier on Friday, when the bail application was supposed to start, the State had asked for the matter to be postponed so that the Director of Public Prosecutions could issue a certificate that stated which schedule of the Criminal Procedure Act the bail application would be under.
The brothers, who are businessmen, said they cooperated with the police and handed themselves over. However, Reddy said Ferrel and Darren had no intention of cooperating with the police. She reminded the court that Ferrel threatened the investigation officer. She said they were also not reachable.
“In respect of Darren, it is clear that he had no intention of handing himself over and he intended to flee to Johannesburg,” she said.
Talking about what had been a challenge in this bail application, the identification parade. Reddy said a witness failing to point the brothers at the identification parade does not exonerate them.
“This court must not attach too much weight that they were not pointed out at the identification parade,” she explained.
She said the brothers donating to charity was not a compelling reason for them to be granted bail. Moreover, she said there was no evidence that their business, Pro-Secure, a security company, would suffer should they not get bail.
She said on December 13, last year, Ferrel resigned as director of Pro-Secure. She said in the submission that the brothers are breadwinners and that Ferrel is an integral part of his children’s lives is not an extraordinary circumstance.
Reddy said they had established that the spouse of Darren is a senior nurse in a hospital at Umhlanga. Moreover, she said the Govenders have demonstrated that they have financial means to evade trial, and should they be convicted, they would face life imprisonment.
The matter was postponed to Monday for judgment.