Mundubile, Zulu bail bid

…State seeks to exclude raid footage in bail application as defence says the two sought safety at UN premises after gunfire and Kafwaya’s death, challenging the State’s claim that they are a flight risk. By CHIKUMBI KATEBE THE State is seeking to exclude affidavit passages and flash-disk evidence concerning a raid on Makebi Zulu’s residence from constitutional bail proceedings in which presidential candidate Brian Mundubile and his running mate argue that they sought refuge at the United Nations premises because they feared for their lives. The dispute places the circumstances surrounding their entry into the UN facility at the centre of a contested bail application: the prosecution relies on the incident to argue that the two are a flight risk, while the defence says the challenged material explains why they sought protection. According to the defence account of the proceedings, the State has raised a preliminary objection seeking to strike out portions of the petitioners’ affidavit in reply, including material relating to a flash disk said to contain footage of the raid and gunfire at Mr Zulu’s Ibex Hill residence. The defence maintains that the evidence directly answers an allegation made by the Director of Public Prosecutions’ chambers in paragraph 19 of its affidavit opposing bail. In that paragraph, according to the account supplied, the State argued that Mr Mundubile and Mr Zulu were a flight risk because they entered a UN facility and government arrangements were required to secure their surrender to police. But the petitioners contend that their actions were driven by fear for their safety following shootings at their residences and the death of former Transport and Communications Minister Mutotwe Mutotwe Kafwaya. They argue that seeking refuge in those circumstances should not be treated as evidence of an intention to evade proceedings. “The reason why we went into the UN facility” was that Mr Kafwaya had been shot dead at Mr Mundubile’s Kabulonga home and State agents had subsequently gone to Mr Zulu’s residence and fired warning shots,” the defence account states. Those allegations form part of the petitioners’ explanation for seeking a place of safety. They have not been established as findings of the court in the material supplied. The defence says the incident at Mr Zulu’s residence was captured on video and that the flash disk supports the explanation given in the replying affidavit. The State’s objection, as described in the account, is that the challenged passages and supporting material introduce new evidence concerning the shootings, Mr Kafwaya’s death and the decision to seek refuge. The petitioners reject that description, arguing that the material responds to an issue the prosecution itself raised when opposing their release. “The position we take is that there’s no new evidence. It’s a clarification or a response to the allegation that they’re a flight risk,” the defence account states. The defence argues that a bare denial would not adequately answer the State’s allegation. Once the prosecution relied on their entry into UN premises, the petitioners needed to explain the circumstances behind that decision. “They did not expect them to just say, ‘We are not a flight risk.’ They needed to explain,” the account states. The contested material therefore goes to the competing explanations for the same conduct: the State’s contention that the two had to be persuaded to surrender, and the petitioners’ position that they were seeking protection after events that left them fearing for their lives. The defence has described the prosecution’s attempt to exclude the flash disk as discomfort with what the recording depicts. That is the defence’s assessment; the procedural ground attributed to the State is that the reply improperly introduces new evidence. For Mr Mundubile and Mr Zulu, who are seeking constitutional bail while facing treason charges, the immediate dispute concerns whether the court will consider the full explanation they have offered in answer to the flight-risk allegation. They maintain that the shootings and Mr Kafwaya’s death are relevant to understanding their conduct and should remain before the court when it considers their application. The court has adjourned for a ruling, according to the account supplied. However, that account does not clearly distinguish whether the next ruling will determine the preliminary objection alone or also address the substantive constitutional bail application. The preliminary issue concerns the admissibility of the challenged affidavit material and flash disk. Whether the petitioners should be granted bail remains the substantive question before the court. No ruling resolving the objection or granting or refusing bail was included in the material supplied. Ends.

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Mundubile, Zulu bail bid