AS IT HAPPENED: Was Henri treated as a witness or a suspect?

2017-05-31 09:53

The Van Breda murder trial continued at the Western Cape High Court for day 21 of the proceedings.

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Last Updated at 16:51
31 May 12:01
Court has been adjourned until 10am tomorrow morning. 

31 May 11:55
Desai says the decision will be handed down tomorrow morning.

31 May 11:53
Galloway says Sgt Adams was in court yesterday at the request of the defence. 

31 May 11:52
Botha finishes arguments. 

31 May 11:51
On probabilities that he was a suspect: we know he was taken from scene, bloody and injured; taken for DNA still dressed in underpants; his version recorded in communal offices, still dressed in his underpants; his family is not given access to him; his blood is tested and Dr Van Zyl told he is an alleged accused.

31 May 11:49
Being taken to Dr Van Zyl for blood tests to check for blood and alcohol is not the type of tests you conduct on a witness.

31 May 11:48
Malan played a fairly minor role. Perhaps one could go as far as saying maybe Malan really thought he was a victim

31 May 11:48
Given the fairly subservient role Sgt Malan played, he said there was a Sgt with him, Adams, who was clearly in charge.

31 May 11:47
The objective aspects contradicts that he was treated like a victim.

31 May 11:45
The problem isn't that Malan made mistakes, it's that he refused to concede that it was his version.

31 May 11:45
We are back. Botha says its not up to his client to prove he was a suspect at the time. It's up to the State to prove he was not a suspect.

31 May 11:32
Tea break.

31 May 11:23
He argues that Beneke and Adams were the main witnesses. Why not call them to testify? They must have been concerned that their testimonies could have contradicted each other, Botha says.

31 May 11:23
His pocket book doesn't say a single word of him actually being present during questioning.

31 May 11:20

He created impression that he had been present when Henri was questioned, said only left once to eat a sandwich, later said that he had also left to do administrative tasks.

Then we hear - from his pocket book - he actually also went to Blue Downs for investigation of a separate case.


31 May 11:19
According to Sgt Malam, he makes an entry in his pocket book in four lines describing that he is at De Zalze assisting in the investigation. He told the court that he didn't return to the scene.

31 May 11:19
Their actions don't indicate that they saw him as a witness, Botha says.

31 May 11:19
He questioned if the police was genuine in their claims that he was being seen as a witness or as a suspect

31 May 11:17
There is a difference between taking a person dressed in pants and shirt to the soctor and police station - that may be how you would treat a witness. To take a person - bloody and injured - dressed only in underwear, that becomes a problem.

31 May 11:15
Botha says we know that at the scene he was wearing his underwear. It was common cause that when he arrived at the Dr rooms, Dr Albertse said that was what he was wearing. Malan said that he had the t-shirt on there.

31 May 11:14
Your client didn't testify to say that he was bare chested.

31 May 11:13
Desai says at worst, this was poor taste. Lie is a harsh word, he says.

31 May 11:13
With regards to Serg Malan, I submit there can be no doubt that his version of my client wearing a t shirt was a lie.

31 May 11:11
Negative inference made as Botha points out that Galloway didn't call Adams or Beneke to testify.

31 May 11:10

What was the evidence?

I concede there was only one person - Serg Malan - who testified. We know for a fact that the State's main witness was not present when he was questioned by Col Beneke and Sergeant Adams.


31 May 11:02

Why are we putting up a fight over a statement with info on par with plea explanation?

We know what is going to come. What police then went and did with his statement. Had he been told, he would have asked for time and included aspects that were not there.


31 May 10:55
The onus is on the state to prove beyond reasonable doubt that his statement was not obtained in a manner which went against his Constitutional Rights.

31 May 10:55
Beyond doubt when we talk about confession, the onus is on the State to prove it was made freely and voluntarily.

31 May 10:54
Accused should have been informed of the protection of his Constitutional rights, and failure to do that makes any reference to statement inadmissible.

31 May 10:47
Adv Pieter Botha to now give his closing statement.

31 May 10:45
Elected not to testify; this should be taken into consideration.

31 May 10:45
Accused did not give evidence in trial-within-a-trial; he didn't say 'I asked for food, or I asked for clothes'.

31 May 10:44
Conduct of police was neither deliberate or flagrant . Their conduct was in line with normal police practice. According to Malan's evidence, he was never assaulted or intimidated.

31 May 10:42
Contents does not amount to confession or admissions - it is a witness statement, Galloway says.

31 May 10:40
He had not been forced and there is no evidence that he had no time to think about it.

31 May 10:39
He never indicated that he was dissatisfied with the police's conduct.

31 May 10:39
Police were eager to take his statement because he was the only witness in a serious and violent crime and needed information for crime intelligence.

31 May 10:35
Adv Galloway citing case law to support her argument.

31 May 10:27
The essence of the content of statement is not disputed, a record of what is already before the court.

31 May 10:27
Alluded that Malan was not credible because of spelling and grammatical issues. English is not his mother tongue. The content remains undisputed. During questioning, Malan also said when he couldn't remember.

31 May 10:26
Dr Albertse confirmed that accused was brought to her as a victim of a crime.

31 May 10:25
He was free to leave and be with his family, where after he had a beer.

31 May 10:25
He said nothing incriminating in the statement.

31 May 10:25
He wasn't put in a position where he had to give information.

31 May 10:24
Accused never indicated he didn't want to talk to police

31 May 10:24
Undisputed evidence of Malan was that he had been a victim, treated in ambulance, taken to Dr to list injuries, not unsual and standard police practice.

31 May 10:23

First argument is was the accused a suspect when he made the statement?

Galloway says the only relevant evidence is that of Sgt Malan. Mr Du Toit's evidence doesn't assist in this, doesn't prove he was detained or a suspect.


31 May 10:22

Adv Susan Galloway to give closing arguments in trial-within-a-trial.

Grounds for objection based on Constitutional rights being violated.

She says he had not been detained at the time


31 May 10:01

31 May 09:53
News24 journalist Tammy Petersen is reporting from the Western Cape High Court

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