By Johnathan Paoli
The bail application of suspended Ekurhuleni Metropolitan Police Department (EMPD) deputy chief Julius Mkhwanazi and his four co-accused, who face charges linked to the 2022 murder of Brakpan businessman Emmanuel Mbense, has been postponed after the Brakpan Magistrate’s Court ruled it could not compel the State to provide the defence with additional information before bail proceedings continue.
Magistrate Collen Mashego on Thursday postponed the matter to 13 August, finding that although several defence lawyers indicated they were ready to proceed, they were effectively seeking further engagement with the prosecution before arguing the bail application.
“I cannot at this stage order the State to provide the defence with the required information. Hence, I’m ordering that this matter be postponed to a date to be arranged so that the defence and the State can engage on the matters,” Mashego said.
The postponement followed extensive arguments by the defence, led by advocate Peter Wilkins, who challenged the State’s classification of the matter as a Schedule 6 offence and argued that the accused could not properly prepare their bail applications without receiving further particulars.
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Wilkins submitted that, based on the provisional charge sheet, the allegations against at least one of the accused did not amount to a Schedule 6 offence.
He told the court the defence had already requested additional particulars from the prosecution but had not received a response, making it impossible to properly assess the State’s case or prepare focused bail applications.
The defence argued that while they were prepared to proceed with the bail application, they could not do so meaningfully without knowing the factual basis on which the State intended opposing bail.
Without those particulars, counsel argued, they would be forced to address every conceivable issue rather than the specific allegations relied on by the prosecution, unnecessarily prolonging proceedings and prejudicing the accused.
The defence further contended that withholding the requested information undermined the accused’s constitutional right to apply for bail.
Wilkins also questioned why the prosecution had elected to oppose bail in this matter when it had not done so in previous Schedule 5 and Schedule 6 cases involving Mkhwanazi.
He said the defence was “perplexed” by the apparent change in approach and argued that the accused were entitled to understand why prosecutors had adopted a different position in the current case.
The defence relied on several court judgments in support of its application, arguing that accused persons are entitled to sufficient information to prepare effective bail applications.
Among the details sought were the specific allegations against each accused, the evidence linking them to the offences, whether the State intended relying on recordings, admissions or confessions, and the precise grounds on which bail would be opposed.
The defence maintained that providing the requested information would enable the court to hear focused affidavits instead of lengthy proceedings conducted “in the dark”.
State prosecutor Velile Makasana opposed the application, arguing that the defence was effectively seeking disclosure of the prosecution’s case before bail proceedings had commenced.
“Perhaps it is actually correct to place on record that everybody kept their cards close to their chest. Now we are before court. We are told about the application,” Makasana said.
He argued that the detailed request for further particulars had only been received on the morning of the hearing and required careful legal consideration.
“It contains so many details. Nobody could even determine those details while striving to court. Any person that will have to respond to that will have to apply his mind and apply the law and come to a decision whether these are going to be furnished to the defence or not,” he said.
Makasana maintained that the Criminal Procedure Act places the onus squarely on accused persons in Schedule 6 matters to demonstrate exceptional circumstances justifying their release.
“The onus is entirely on the shoulders of the defence. We don’t have a duty to disprove what the legislation places before court. The State cannot be compelled. The State will decide at the appropriate time which method the State is going to use going forward,” he said.
The five accused — suspended EMPD deputy chief Julius Mkhwanazi, former EMPD officer Keisha-Leigh Stols, EMPD officer Adrian Mackenzie, former SAPS member Bhekokwakhe Sibande and civilian Cobus Janse van Rensburg — face charges including murder and defeating the ends of justice.
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According to Independent Police Investigative Directorate (IPID) investigator Nomsa Masuku, Mbense disappeared after a police raid on his Boksburg North home on 14 April 2022. His body was discovered the following day at Spaarwater Dam in Duduza, near Nigel.
IPID completed its investigation and referred the matter to the Director of Public Prosecutions in February 2026, while also recommending disciplinary action against the implicated police officials.
The accused are expected to return to the Brakpan Magistrate’s Court on 13 August for the continuation of their bail application.
