Advocate raises bias issue

2009-10-15 00:00

JUDGE Leona Theron, who is presiding over the trial of Okhahlamba (Bergville) municipal employee Elphas Dladla, charged with the murder of his wife’s lover at Duzimed Pharmacy in 2007, will decide today whether she will agree to an application by the defence that she recuse herself.

Traffic officer Denis Mandla Khanyile was gunned down inside the pharmacy on the night of March 23, 2007.

Advocate Fanie Slabbert submitted yesterday afternoon that the judge showed bias towards the accused yesterday by pointing out to state counsel Denardo MacDonald areas of the evidence that she believes need further cross-examination of the accused.

“Can I ask you, Mr Slabbert, to confirm that the basis of your application is that this court, having regard to the relative inexperience of [state] counsel, identified — in the presence of both counsel in chambers — possible areas [of evidence] requiring further investigation in the interests of justice?” the judge asked.

She said these areas related to the bullet entry wounds on the body of the victim, the divorce proceedings that Dladla testified he had instituted against his wife, the fact that photographs showed that Khanyile’s shirt had been tucked into his pants, and whether Dladla had seen a firearm on him when he entered the pharmacy.

The judge added that she had also suggested to MacDonald that he discuss the matter with a senior colleague in his office.

This was confirmed by Slabbert. He referred the court to case law in support of his application.

In the witness stand earlier yesterday, Dladla repeated his version that he believed Khanyile was reaching for a gun behind his back when he fired a total of nine shots at him in the pharmacy.

He admitted he did not see a firearm in Khanyile’s possession.

Dladla said he continued shooting “fast” until he had emptied his magazine. He said Khanyile stood throughout the shooting, but then began to fall. Fearing that Khanyile could still be alive and shoot at him at that point, Dladla fled the scene.

He went straight to the police to hand himself over.

Dladla denied he had been angry when he fired the shots. He said it was Khanyile who was angry while denying the affair.

Dladla said he did not issue a warning to Khanyile as he was “not going to wait” until Khanyile shot him.

At first yesterday, Dladla testified that his wife had admitted the affair to him “about two weeks before the incident”. He testified that when he began to suspect her, he had tried to get information from Vodacom about her cellphone calls, but they would not assist him.

He also hired a private investigator. Dladla told the court that he had instituted divorce proceedings against his wife, but did not tell her about that as he did so with the intention of stopping her from getting his assets.

He testified that his wife became aware of the divorce action only when papers were served on her after he was released on bail.

Dladla initially said he’d instituted the divorce action in January 2007. At the time, he said he suspected his wife of being unfaithful because she was “aggressive” towards him, and left home at night and could not be reached.

After it emerged during the questioning that his youngest child was born on January 17, 2007 (two months before the shooting), he said he could have made a mistake about the dates.

He thereafter testified that the time he had begun suspecting his wife of an affair was in January 2006.

Asked if he ever suspected his baby was not his own he responded: “No, I was one hundred percent sure the baby was mine”.

The trial is proceeding.

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