Ferrel Govender, has succeeded in his application to appeal a Durban High Court judgment, which dismissed his bid for a bail.
In January this year, Govender, 41, the group CEO of Pro Secure, and his brother, Darren, 35, were charged with the murder of Shailen Singh.
Singh, 32, of Mount Edgecombe, was shot multiple times while seated in his vehicle in a parking bay in Meridian Drive, in uMhlanga, on December 29, 2024.
During the bail application it emerged that the motive behind Singh’s killing was allegedly due to a “love triangle” between him and Govender’s former girlfriend, Salona Ramrutton Kisten.
Darren was granted R200 000 bail in the Durban Magistrate's Court last month. However, Govender was denied bail and took the ruling on appeal to the high court.
Last Thursday, Judge ME Nkosi dismissed Govender’s appeal against the ruling made by the magistrate to deny him bail.
On Monday, Govender’s legal representative filed a notice of application for leave to appeal against the judgment handed down by Judge Nkosi.
Earlier today (Wednesday), following arguments by his legal representative, Michael Hellens SC, instructed by attorney Ravindra Maniklall in the high court, he was granted leave to appeal the judgment. The appeal is now expected to be heard before three judges.
In Govender’s appeal notice, it was submitted that the judge on appeal erred in one or more respects.
It read that the appeal court should have found that the magistrate failed in his duty to apply provisions of the Criminal Procedure Act in regards to the records of the identity parade and to call for the statement of Govender’s former girlfriend.
“Regarding the failure to call for the statement by the former girlfriend, the appeal court ventures into the realm of speculation, when it speculates that it is ‘not uncommon for victims of gender-based violence to recant or destroy proof of the abuse when they are persuaded or pressured by their abusers to do so.
"Most victims of gender-based violence end up regretting that decision when the abuse continues or gets worse often with disastrous consequences’. There is nothing in the evidence in the appeal record that justifies the appeal court in venturing into the realms of speculation.”
In addition, the notice read that the appeal court failed when it found that the magistrate “erred on the side of caution”.
“Caution dictated that in order to be able to rely on alleged abuse by the appellant (Govender) of the former girlfriend that it was necessary to get to the bottom of whether the allegations in the video footage were true and placed in their proper context. Caution would have demanded the exercise by the magistrate of the discretion in this regard, which he failed to exercise.”
According to the notice, there was also no video footage showing Singh being shot several times at all by anyone.
“The above-mentioned fact vitiates the reason of this court regarding the alleged strength of the State cases. If one removes this faulty reasoning from the reasoning of this court, then one is left only with that which the appeal court appears to have neglected to take into account.”
According to the notice, this included contents from the investigating officer's statement, in which he refers to the person who observed the shooting and gave a description.
“But it being common cause that the person failed to identify the appellant as the shooter. A second witness who allegedly identified the appellant as being at the scene, but not as the shooter,” it read.
Further, in the notice it is said that according to the investigating officer’s statement, one will find that a witness who alleged that he knew Govender, saw him in the vicinity of the shooting but did not observe any shooting.
“The investigating officer makes the enigmatic statement, which does not accord with the balance of his statement, that the appellant was identified as the fair Indian male who fired shots at the deceased. Whereas the appellant was at best identified as the person who at a stage approached the passenger side of the vehicle,” it read.
In his judgment, Judge Nkosi said he had to determine whether the magistrate exercised his discretion wrongly.
“Generally, it is trite that when considering an application for bail the court must weigh the interests of justice against the right of the accused person to his or her personal freedom.
“In my view, the learned magistrate was meticulous in his weighing of the interests of justice against the right of the appellant to his personal freedom. In essence, he found that the right of the appellant to his personal freedom was totally outweighed by the interests of justice.
“Therefore, taking into account all the evidence that was led before the court a quo in its totality, I am not satisfied that the decision of the court a quo( magistrate court) to refuse the appellant's bail application was wrong in any respect,” he said.