Prosecutor murder accused gives up bail bid after failed fight for docket

One of the two men accused of murdering State prosecutor Tracy Brown abandoned his formal bid for bail on Friday, 19 September, after he was refused access to the police docket.

Read more: Police close in on suspects as tributes paid to murdered Gqeberha prosecutor Tracy Brown

This means Simthembile Xungu and his co-accused Ayabulela Busakwe, who abandoned his bid for bail at a previous court appearance, will stay behind bars for the foreseeable future. 

And the hunt for further suspects continues, including the mastermind who the State believes could be an inmate at the St Albans Correctional Centre.

Read more: State believes Gqeberha prosecutor killing arranged from St Albans prison

In the Gqeberha Magistrates’ Court on Friday, Magistrate Thabisa Mpimpilashe summarised the State’s submissions in response to an application from Xungu’s legal team to gain access to the docket so that they could better prepare for a formal bail application.

In the application, advocate Sibongiseni Zimema, instructed by Joko Attorneys, told the court they required more insight into the State’s case as they needed to understand how Xungu was implicated in the conspiracy to murder Brown.

State advocate Marius Stander opposed the application, saying there was no legal precedent allowing the defence access to the police docket before the matter went to trial.

The State also submitted that the investigation was at a very sensitive stage as more arrests were imminent, while witnesses and evidence could be jeopardised if too much information was made available to the defence.

Stander did, however, read an affidavit from investigating officer Warrant Officer Shane Bosch into the record to shed light on the alleged links that tied Xungu to Brown’s murder.

In her judgment on Zimema’s application, Mpimpilashe summarised the alleged sequence of events as placed on record by the State.

Sequence of events

Tracy Brown was shot and killed outside her Young Park home on 31 July. She had just arrived home from work at the New Brighton Magistrates’ Court when two armed men climbed out of a silver VW Polo and shot her multiple times. 

She was rushed to hospital but died of her wounds shortly afterwards. Her partner and daughter were in the car with her when the shooting took place.

Read more: Another Nelson Mandela Bay prosecutor targeted in brazen shooting

The owners of the VW Polo claimed that Xungu borrowed the car from them around the time of the shooting. A witness near the scene told the police that he saw Xungu in the front passenger seat of the car, as it almost hit his own car while driving recklessly shortly after the shooting, Mpimpilashe said.

Cellphone analysis also placed Xungu’s phone near Brown’s home and her place of work on the day of the shooting, as well as the day before. There was also extensive communication between Xungu and his co-accused in the days leading up to the attack.

Cellphones confiscated during an operation at St Albans are also being analysed for possible links to Xungu’s phone, as the State is alleging the hit on Brown was arranged from inside the prison.

Mpimpilashe agreed with the prosecution submissions and reiterated the case law used to oppose the application, saying the defence had no right to “look over the State’s shoulder”as the investigation unfolded. She also said that the State provided more than enough insight into Xungu’s alleged ties to the incident for him and his legal team to adequately prepare a formal bail application.

Following her dismissal of the defence’s application and a short adjournment for Zimema to consult with his client, Xungu abandoned his formal bail application. The matter was subsequently postponed until 30 October for further investigation, and both accused will remain in custody. 

Responding to a question in Parliament on Wednesday from the Economic Freedom Fighter’s Mathibe Rebecca Mohlala, Minister of Justice and Constitutional Development Mmamoloko Kubayi said five prosecutors had been killed in as many years, including Eastern Cape prosecutors Brown, Ntsikelelo McAllister and Elona Sombulula.  

The others were Vukile Gontsana from the Western Cape and Sonwabo Booi, from KwaZulu-Natal. In addition, advocate Aaron Raletjena, who was based at the National Prosecuting Authority head office in Pretoria, was shot and killed at his home, Kubayi said. DM