Lawyers acting for murder accused brothers Ferrel and Darren Govender urged the Durban Magistrates Court on Thursday to not ignore issues they raised over their identification parade issue, when a decision is made on whether or not to grant them bail.
The brothers were arrested in connection with the murder of businessman Shailen Singh, 32, who was killed on December 29, 2024, in a parking lot on Meridian Drive in Umhlanga at around noon.
The defence has raised the issue of the identification parade in the bail application of the Govender brothers numerous times and had tried to bring in an application to have the State bring in a document detailing what happened during the identification process. The Court had said that the issues raised regarding the parade was not necessary for it to make a decision on whether the businessmen should get bail or not.
The defence said a state eyewitness did not point out Ferrel as a shooter. The while the State alleges that Ferrel shot Singh.
The Stater maintains that the details of the identification parade would be ventilated during the trial. They said they were not denying that their witness did not point to Ferrel as a shooter.
Counsel for Darren, advocate Christo van Schalkwyk SC, said by granting his client bail, the court would be permitting him to take an active role in planning with his counsel for his defence.
During the heads of argument, Schalkwyk said like the presumption of innocence, bail is a procedural human right.
“The basic purpose of bail, from society's point of view, has always been and still is to ensure the accused's reappearance for trial,” he said.
He said pretrial release serves other purposes as well, purposes recognised over the last decade as often dispositive of the fairness of the entire criminal proceeding.
Furthermore, Van Schalkwyk said the presumption of innocence operates in favour of the applicant, even when there is a strong prima facie case against him.
“A prima facie case before the court at this stage is mainly premised on hearsay evidence of the investigating officer,” he said.
He urged the court to apply the highest measure of fairness when dealing with this application.
Van Schalkwyk did not finish his arguments due to a power outage at the court.
The matter was postponed to Friday morning for further arguments.