The state has been given the go-ahead to reopen its case against the man accused of setting fire to a Johannesburg building in which 76 people died.
This is after discrepancies emerged over the identities of some of those who died.
Judge Cassim Moosa granted the application at the Palm Ridge High Court in Johannesburg.
Sithembiso Lawrence Mdlalose is charged with 76 counts of murder, along with attempted murder, arson and defeating the ends of justice.
Fire gutted the hijacked, five-storey Usindiso building in Marshalltown, in the Johannesburg CBD, in the early hours of August 31 2023.
Cutting a lonely figure in the dock in a dark padded jacket, Mdlalose waited to hear whether he would be convicted on the 76 murder charges against him.
But in a bizarre twist, the state brought an application to reopen its case, telling the court there were discrepancies over the identities of some of the dead.
Irked by the request, Mdlalose clashed with his advocate Leonard Cindi, who had not opposed it, and rose to address Moosa out of turn.
He stormed out when the matter was adjourned, then returned to ask Cindi whether he was still acting for him.
The state had applied to lead further evidence after discrepancies emerged in the post-mortem reports.
A post-mortem report identifies the deceased and records how they died. In this case, the reports are the state’s evidence that the people it says were murdered are the same people whose bodies were recovered from the building.
Moosa raised the discrepancies with both sides before he was prepared to rule.
He said refusing the application would have failed everyone with a stake in the case.
“It is the considered view of this court that if this application were not to succeed, it would be a travesty of justice, not only to both the parties, but to the victims as well as their relatives, the surviving relatives,” he said.
“And at the end of the day, as was stated in the case of R v Hepworth, this is simply not a game.”
Moosa confined the state to three questions when it returns.
“The application, very simply, on narrow grounds and narrow terms, is to allow the state to open the case simply to clarify the aspect of the identity of the deceased, the findings of the pathologist, as well as the photographic evidence.
“Application by the state for the reopening of the case in respect of the queries raised by this court is hereby granted.”
Twelve of the dead were children.
The building was put up in 1954 by the Johannesburg municipality as the pass office for black South Africans, was later managed by the Joburg Property Company, and was taken over by Usindiso Ministries, which ran it as a shelter for abused women for 10 years before it was abandoned in 2017.
By the time of the incident it had been carved up into rooms rented out to hundreds of people who had nowhere else to go.
A commission of inquiry, chaired by retired Constitutional Court justice Sisi Khampepe, was established to investigate the fire.
It found that the City of Johannesburg and the Joburg Property Company had to carry part of the responsibility, and that the death toll would have been lower had the city met its legal duties as owner and municipality.
It was to that commission, on January 23 2024, that Mdlalose implicated himself, and Khampepe then ordered that he be taken to a magistrate to put the confession in writing.
He told the commission that a Tanzanian drug dealer he was working for to feed his own addiction had instructed him to kill a man the two of them had already assaulted in one of the rooms, and that he doused the body in petrol and set it alight to hide what he had done.
He later withdrew the confession and pleaded not guilty.
Cindi argued that the confession should be thrown out because police never tested Mdlalose for drugs before taking it, and so could not show he was sober when he made it.
Judgment has been delayed since May.
Several of the bodies remain unidentified and are likely to be buried as paupers.
The matter resumes on Wednesday.
