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Waterkloof 4: Charge upheld
02/12/2004 21:07 - (SA)
Pretoria - The Pretoria Regional Court on Thursday turned down an application by the defence for the discharge of the four youths in the Waterkloof murder trial after finding there was a prima facie case against them.
After the state closed its case, defence advocate Jaap Cilliers asked the court to discharge Christoff Becker, Frikkie du Preez, Gert van Schalkwyk and Reinach Tiedt on charges of assault with the intent to do grievous bodily harm, and murder.
Assault 'physically impossible'
He argued that it was physically impossible for the alleged assault to have taken place if one took into account the routes the accused had driven and where they were, as indicated by their cellphone records.
He said according to state witnesses, the youths, travelling in one car, had to assault the alleged victim in Constantia Park, drive to a spot where they had to wait for five minutes for the boys in the other vehicle, drive back to assault the victim again, and then drive to Moreletta Park - all in fourteen minutes.
"It is absurd," Cilliers stated.
Beyond doubt
Referring to the murder charge, the advocate asked: "Has the state proved beyond any doubt that the body the pathologist has examined, was that of the man who was allegedly assaulted by the boys in the park?"
He said if the court could not come to that conclusion without any doubt, then the accused should be released.
Cilliers reminded the court that pathologist Dr Alida van der Hoven found no wounds consistent with the kicks and trampling the witnesses had testified about.
He added that not one of the state's witnesses testified that the person assaulted was the deceased in the pictures handed to court.
Cilliers concluded that if the state witnesses' evidence was true, then the body found was not the right one.
"In all probability the man who was allegedly assaulted in the park is still alive," he said.
In his reply, state advocate Johan Kruger said the test in a discharge application was not the credibility of witnesses, but whether the state had a prima facie case.
He said it was never disputed that Becker and Van Schalkwyk went into the park with meat knives.
Neither was it disputed that Tiedt was armed with a hammer or that he had hit someone with this hammer.
According to him Van der Hoven also testified that the wounds on the body found were consistent with injuries caused by knives and a hammer.
"The defence now wants us to speculate on how a child, aged 14 at that time, would have witnessed an attacked in the early morning hours in the rain," Kruger said.
Kruger said the accused alleged they did not use the knives. Yet they entered the park to "heroically" catch a suspected burglar.
Then, without having done anything wrong, they threw the knives away, a fact, Kruger stated, that was undisputed.
He also referred to a telephonic conversation between Becker and the 14-year-old witness the day after the incident, where the witness told Becker "the man did not move".
"Now who is this man, then? The day after the accused entered the park with knives and a hammer, the witness find this body in the park with a stab wound to the leg and wounds to the head," Kruger said.
The fact that there were no injuries on the body that could be linked to the alleged kicks Du Preez had given the man in his face, did not erase the fact that there were enough other supporting injuries, Kruger said.
Magistrate Len Kotze found that Du Preez, Tiedt and Van Schalkwyk were directly linked to the assault charge by three witnesses.
He said the defence asked the court not to believe a specific witness on one charge, but to believe him on the other charge.
However, he found there were enough evidence to also implicate the accused on both charges and denied their application for discharge.
The hearing continues.
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