There was a spontaneous “hallelujah” from one of the women crowded at the open window at the back of the too-small and stuffy Centurion courtroom in an attempt to listen to proceedings on Friday 3 January 2020, but an orderly in military uniform promptly and sternly shushed her. Military judge Lieutenant-Colonel Ramafi Kodisang had just pronounced that there was “no basis” for the 12 South African National Defence Force members who missed out on Christmas and New Year with their families, to remain in detention.

The men were arrested at work two days before Christmas when it was discovered that 19 R4 rifles were missing from the Engineering Formation at the Lyttelton TEK Base in Centurion.

As the men marched out of the courtroom — a classroom which served as military court C at the old Air Force Gym base opposite the Swartkops Museum in Centurion — one of the women shed tears of relief. The men wore military uniform and stood at rest with their hands behind their backs for the duration of the court hearing. At one point the judge expressed concern that one of the accused looked like he was trembling and could collapse, but the man said he was fine. They’d been in detention in military police cells since December 23. Most looked worn, but one smiled and winked at a friend outside the courtroom, mouthing: “We’re going home!”

Unlike the first court appearance a week before, the state was fumbling. Prosecutor Motale Mogale told Kodisang that the state wanted to keep four of the 12 men in detention for the weekend so that the state could put some finishing touches to its investigation. On Monday, January 6 2020, the state would “address the court properly with regard to the stage of the investigation in respect of the case that is currently going on,” Mogale said. All the men had been charged with theft, breaking and entering, and the negligent loss of firearms.

These four — the court has ordered that names and faces of the accused not be published — all had access to the store the rifles were stolen from.

“They were all in positions of authority and also, all these accused have got unrestricted access where they are working currently,” Mogale said. “They have access to the keys to the stores, all of them.” The state felt they would interfere with the investigation if they were released.

One of the men was also in charge of the security cameras, which seem to have been tampered with. This meant the state had to call in outside experts to determine what happened to the recordings and whether the footage could be salvaged. Perhaps the date the cameras had been tampered with could give a more precise hint as to when the weapons went missing. The only thing the state appears to know is that the rifles disappeared between the last audit in September and 23 December, when an overdue spot check was done. Mogale admitted in court that the state didn’t know when the weapons disappeared or where they could have gone to.

For now, the only evidence the state seems to have are fingerprints “and a touch of DNA”, the judge said when summarising the arguments. This was despite the fact that the SANDF called in the help of both the police and the Hawks on Christmas Eve, a day after the weapons were discovered to be missing.

Lieutenant-Colonel Dolphy Bopape, who represented the officer in charge of the security cameras, said the Hawks were busy searching his client’s house while Friday’s court case was happening. Bopape said his client had been arrested before the state did its investigation, and now they were hoping to find something to hold against him.

“What if bail is denied, but a postponement is giving an opportunity to the Hawks to search, but they come up with nothing? What about his fundamental right to liberty?” Bopape said, adding that his client was “being sacrificed for the greater good, to allow the SANDF to save face”.

Former military judge Brian Plaatjies, who represented the other 11 accused, argued that bail was non-penal in character.

“The denial of bail is not meant to punish the accused,” he said. Plaatjies also added that the state already had seven days from the first court appearance to complete its investigation, as the investigating officer promised she would, and couldn’t ask to keep the accused in detention for longer.

“The arguments must be done today, namhlanje. They should have known seven days ago if there is something they wanted to argue,” he said.

There was outrage initially when the disappearance of the weapons was discovered, and Defence Minister Nosiviwe Mapisa-Nqakula cancelled the leave of the military command council “to ensure that all key infrastructure of the SANDF throughout the country are secured and to give assurance that all citizens are and feel safe”. She called the suspects “unpatriotic and self-serving thugs” in a press release on Christmas Eve and assured citizens “the outcomes of the investigations will be communicated once completed”.

In his decision, Kodisang reminded the state that, even though there were no valid legal grounds to keep the accused in custody, it still was a serious matter.

“You are dealing with rifles. This is a country ravaged by criminal activity. There must be a serious effort to find those rifles, irrespective of who stole them, because if not, 19 rifles can start a mini-war and destabilise a number of activities.” He was also scathing about the Hawks waiting 10 days to search the house of one of the men after they arrested him.

“There is a likelihood that, if the weapons were in his home, they have [already] been removed,” Kodisang said.

All the men were released under strict conditions, including that they are detached from the unit where they worked and where the rifles went missing, and that they report for duty at 7.30 every morning. The next court appearance is set for 10 March 2020. DM