Thabo Bester saga: accused want bail so they can care for their children, lawyers argue

• Lawyers for five of the accused in the Thabo Bester saga say their clients are the primary caregivers of minor children and therefore need to be granted bail.
• The magistrate questioned why this was not specifically argued in the affidavits submitted by the accused.
• Lawyers argued that the court should take all evidence and arguments made in court into consideration when making its decision and not view them in isolation.

The bail hearing of five of the eight accused in the Thabo Bester saga ended on Wednesday morning in the Bloemfontein Magistrate’s Court with lawyers for the accused responding to closing arguments made by the State. This was the fifth day of the bail hearing.

The accused are facing various charges relating to Bester’s escape on 3 May 2022 from Mangaung Correctional Centre. Lawyers for the accused argued that their clients are the primary caregivers of minor children and should therefore be granted bail.

The magistrate questioned why this had not explicitly been argued in the affidavits submitted by the accused.

Speaking to Tshotlego Makemedi, who represents CCTV technician Teboho Lipholo, the magistrate asked: “If it was the intention of applicant Number Two to submit that he is a primary caregiver, why was it not argued to this court? … I cannot just infer [the argument].”

Makemedi responded that Lipholo had said in his affidavit that he has seven children who live with him and therefore, in essence, had said that he was the primary caregiver.

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“The court should attempt to look at all factors and make a ruling,” said Masile Koenane, who represents former prison warden Motenyani Masukela.

Koenane said that the court should not isolate different pieces of evidence and should rather consider everything together.

The definition of a primary caregiver in terms of the Children’s Act was also at issue. Koenane and Kagisho Moruri, representing former G4S employee Senohe Matsoara, both argued that parental rights and responsibilities are shared by both parents, regardless of where the children live or whether they have another parent.

Gary Botha, who represents former control room operator Natassja Jansen, said that “in most instances” the mother bears the responsibility of caring for the children and that the court should take that into consideration when making a decision on Jansen’s bail. Jansen has two children and lives with her parents.

It was also argued that the merits of the State’s case against the accused should not determine the magistrate’s decision on granting bail. The magistrate had previously, during cross-examination of State witness investigating officer Tyho Flyman, encouraged the lawyers for the accused to leave certain matters for the criminal trial.

Prosecutor Sello Mathloko previously argued that the verbal testimony by Flyman was stronger evidence than the affidavits submitted by the accused.

Moruri argued that at the time that the accused drafted their affidavits, they were not in possession of the complete police dockets and did not know what case they needed to make.

The magistrate will hand down his decision on Monday. The accused will remain in custody until then.