If in cricket South Africa’s premier batsman Hashim Amla is renowned for brilliant strokes, how does one describe the genius of journalist Zahid Asmal during the bail application in the Fayaz Kazi murder that landed me in the witness box?
Given the vast difference between lush green turfs on which cricket is played and the somber, dark and uninviting courts with hard benches in which the public spends hours and days on end to see contests of another kind, it may seem far-fetched to compare Amla’s batting skills with Asmal’s spontaneous brilliance!
Terrain aside, it remains true that cricket is governed by a host of stringent laws while the criminal legal system ensures that it would be unsporting, unfair or “not cricket” to hear the other side.
And this is where Asmal bowled his googly to land me in the box!
The setting was in Krugersdorp’s district court with Magistrate Reginald Dama presiding. The cast was made up of the Public Prosecutor, the Investigation Officer, the two accused, defence attorneys, a strong media contingent, members of the victim’s family, an outraged public and heavy police presence.
It was the second occasion within a fortnight during which Rudolf Viviers and Zain van Tonder, accused for the brutal slaying of a young Muslim man Fayaz Kazi and the brutal assault of his close friend Ansar Mahmood at a food franchise outlet in Magaliesburg, appeared to face charges and apply for bail.
During their first appearance, tensions were at breaking point when police, acting without a court order, barred journalists, family and members of the public from the courtroom. Emotions, already sparked countrywide by media reports of the vicious assault and tragic death of Kazi, peaked when it was discovered that the accused made their appearance behind closed doors in secrecy.
Fury and rage marked the day and despite explanations provided by the prosecutor, it did little to quell a strong sense of suspicion that something was amiss!
What followed in the criminal procedure was an identity parade a few days later held in Kagiso’s brand new police building. The good news was that all seven witnesses had positively identified the culprits clearing the way for the formal bail application!
A week later we were back in court with the public gallery filled to capacity.
Magistrate Dama heard that Van Tonder had been charged for common assault and his application for bail was not opposed by the state. Viviers on the other hand, faced charges of murder and grievous bodily harm [GBH]. His application to secure bail was opposed by the state on the grounds that he had committed a schedule 5 offense.
Dama appeared unconvinced by the prosecutor’s plea to deny bail and called on the investigating officer to make an oral submission. Immediately he commenced to interrogate the officer’s evidence, it became clear that the Afrikaner warrant officer was out of depth. Not only was he unable to distinguish Muslims from Indians; his lack of understanding and explanation about widespread outrage in the “Indian” community seemed to falter badly.
He was unsure about whether Osama bin Laden was Indian or Pakistani and when questioned by Dama about why anyone would be offended if called a “coolie” or “Bin Laden”, he faltered yet again!
At this point, Asmal decided to jump into the deep-end. It was a masterstroke! His propensity to “rise to the occasion” is a trait I’ve admired even though on numerous occasions, Asmal’s enthusiasm for justice cost me sleepless nights.
This time was no different. Except that I had no chance to place my tired head on a pillow! His intervention whereby he slipped a hurriedly scribbled note to the prosecutor offering to bail her out of a predicament by testifying for the state was quickly acknowledged. After conferring with the magistrate, Asmal was called to testify only to be told that since he had earlier made representation on behalf of journalists to allow live coverage of the proceedings, his testimony could not be entertained.
As this drama played out, it left me with no choice but to fill the void Asmal’s unprecedented move had created: testify on behalf of Media Review Network by providing “context and substance”.
The rest is history. From Dama’s judgement delivered the following day, he graciously acknowledged and underlined the significance of my testimony regarded as “eye-opening to the court” and proceeded to deny bail to Viviers.
My submission centered on the question of Islamophobia and sought to explain why the enormous sense of outrage felt by Muslims was due to the extent of hate-filled demonisation experienced by followers of Islam in the aftermath of America’s misguided “war on terror”.
The strategy of dehumanising Muslims engaged or supportive of resistance against American imperialism by the west could best be explained by illustrating how Osama bin Laden had been hunted down and executed without being afforded his day in court. That this was underpinned by a sustained campaign of vilification and demonisation was to neutralize public opinion fed by a steady diet of propaganda that Bin Laden was the “embodiment of evil” whose death was to be celebrated.
That Fayaz Kazi was mocked as a “coolie” and “Bin Laden” before being viciously attacked and kicked, as he lay bloodied on the ground pointed to his murder as a racist hate-crime by intolerant thugs.
Viviers and Van Tonder will be back in court on November 29 to face murder trial.