AS IT HAPPENED: Defence criticises State's expert witnesses in Panayiotou closing arguments

2017-10-31 09:22

Here are the final closing arguments by the defence in the Panayiotou murder trial.

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Last Updated at 21:20
31 Oct 15:47

Court is adjourned.

Chetty says he will hand down judgment at 9.30 on Thursday.


31 Oct 15:46

Stander points out that the evidence relating to Sibeka, Vumazonke's aunt, was admissable.

He says that it was only the statement in terms of what she was told that was ruled not admissable.

Stander says he abides by his argument.


31 Oct 15:46

He says he was taken to task for dealing with Zelda Swanepoel and Malherbe Marais.

He says he dealt with it in regard of evidence led that was not challenged.

He also addresses details relating to the investigating officer, Kanna Swanepoel.


31 Oct 15:44

Stander now moves to accused 1, Panayiotou.

He has drafted a short reply to their initial heads.

He says he is not going to go into detail.


31 Oct 15:44

Starts by pointing out that Heyneke, Khanti and du Plessis were at least present in court, while Coutts was not.

He points out that Coutts' paper, submitted by Daubermann, was authored in 2009, but highlights how cellphone towers have changed significantly in 2011.

He points out that these days there are very little overlap in urban areas now, due to the density of towers in these areas.


31 Oct 15:42

He says it is clear that the State has failed to prove the guilt of accused 3 and 4 (Nenembe and Sibeko) beyond a reasonable doubt on any of the charges and they ought to be aquitted on all the charges.

Stander rebuts.

Asks to begin with Daubermann's evidence.


31 Oct 15:41

The fact that accused no 4 (Sibeko) ultimately did not take part in the execution of the scheme suggests that he may have been willing, from the outset, to take part in the execution of the scheme.

Daubermann concludes.


31 Oct 15:41

Daubermann says the fact of communication between the three does not place them in each other's company at any stage.

On the contrary, the fact of the said communications shows they were probably not in each others company at the time.

Daubermann said there is no evidence to show Sibeko had any knowledge of the scheme.

There is no evidence to show that Sibeko collaborated and/or participated in the execution of the scheme.


31 Oct 15:30

There is no evidence before the court with regard to the relationship between 2, 3 and 4 and why they may have been communicating with each other.


31 Oct 15:30

The fact that the accused 2, 3 and 4 communicated telephonically with each other on the dates and times recorded in the cellphone billing says nothing about the content of those communications and /or the reasons for those communications.

The timing and frequency of the communications says nothing about the content.


31 Oct 15:28

Daubermann said the State failed to call a witness to provide analysis or interpretation of cellphone billing records.

Daubermann says the only fact that the State has is that there were communications between Vumazonke, Nenembe and Sibeko.


31 Oct 15:25

Her evidence can, accordingly, not assist the court to determine the location of accused 2 3 and 4.

Her opinion that accused 3 and 4 were 'scouting' with accused 2 at the deceased premises has no factual assistance and must be disregarded by the court.


31 Oct 15:23

Daubermann now tackles the evidence of Thereza Botha.

Ms botha, by her own admission is not an expert on the analysis and or interpretation of cellphone billing records for the purpose of determining location and or movement of cellphones in question.


31 Oct 15:20

Daubermann says that, as before, Du Plessis had not established herself as an expert.

Daubermann says Du Plessis evidence cannot assist the court draw any inferences with regard to location and or movement of any of the cellphones in question.



31 Oct 15:15

Her evidence cannot assist the court to draw inferences with regard to the location and or movement of any of the cellphones in question.

Daubermann moves on to deal with the evidence led by Hilda du Plessis, who testified relating to Cell C network.

Daubermann goes through the court record relating to Du Plessis' evidence.


31 Oct 15:15

Daubermann says Heyneke never held herself out to be an expert, she did not have the required qualifications as set out by Professor Coutts.

He said she gave very limited evidence with regard to how cellphone networks operate.

She expressed no opinion based on the data contained in the cellphone billing records.


31 Oct 15:07

Daubermann now moves on to deal with the evidence of Ms Petronella Heyneke, who testified relating to the location of Vodacom towers.

Daubermann goes through the record of Heyneke.

Daubermann points out that the maps provided by Heyneke were not plotted out by herself and that, as such, it is again heresay and again inadmissable.


31 Oct 15:04

Daubermann says that since no other evidence has been led relating to the location of the towers, the State has failed to prove the locations.

He sid the State relied on the location of the towers to prove the location and movements of Vumazonke, Nenembe and Sibeko.

"It follows therefore that the State has also failed to prove the location and/or movements of accused 2 3 or 4."


31 Oct 15:01

"by his own admission, he did not prepare the maps himself".

"The probative value of Mr Khanti's evidence relating to the plotting of the location of the base stations depicted in the MTN maps clearly depends on the credibility of the MTN planning engineers who prepared the maps.

It is clear Mr Khanti's hearsay evidence relating to the plotting of the location of the base stations is inadmissable and must be left out of account, ie disregarded, by the court.


31 Oct 14:57

Daubermann deals with the issue of State's expert witnesses.

Dealing with Dharmesh Kanti, he points out that he had given no evidence whatsoever as to his qualifications or experience, just that he was a manager at MTN.

Daubermann points out that he had been asked to plot cellphone tower locations, but that this had been passed on to the radio planning engineers.


31 Oct 14:54

The court should not also fall into the trapof believing that cellphone billing records to prove location and movement of cellphones in question.



31 Oct 14:53

Daubermann goes into detail about determining cellphone location.

"Remember no one ever knows where the cellphone is. The best an expert can do is provide the cell tower locations used by the cell phone."

Unfortunately for him [Stander], while it may not be rocket science, it is science. The situation is far more complex than he would have the court believe.


31 Oct 14:49

Daubermann refers the court to extracts from a Professor RP Coutts from Australia.

Daubermann says Coutts makes a number of salient points in his papers.

Daubermann says none of the witnesses called by the State posesses the knowledge and training described by Prof. Coutts.


31 Oct 14:42

Daubermann moves on to deal with the evidence relating to location and movement of cellphones at relevant times.

The State seeks to prove Nenembe and Sibeko's complicity in the commission of the alleged crimes by proving the location and movement of their cellphonesat various times.

Daubermann says the matter of analysis and interpretation of cellphone billing for determination of location and/or movement in question is a matter for expert opinion, it is not something that can be determined by the court without benefit of expert opinion.


31 Oct 14:41

Daubermann says the state has adduced no evidence to prove that Sibeko was in possession of the sim card at the time of the commission of the offences, as he was arrested more than a year after the fact.

He says there is no evidence to prove that Sibeko purchased a SIM card with the relavant number.


31 Oct 14:41
The three accused: Christopher Panayiotou and his co-accused – Sinethemba Nenembe and Zolani Sibeko. (Derrick Spies, News24 Correspondent)

31 Oct 14:37

Daubermann says the State failed to call the lady who was found in possession of the phone.

Daubermann then deals with the RICA details.


31 Oct 14:37

He argues that the hearsay evidence of Bosch is inadmissable.

Dealing with the finding of the phone when Sibeko was arrested.

Daubermann points out that the cellphone was found in the possession of an elderly lady.

He points out that there was no confirmation that the phone found in her possession, was in fact the cellphone of accused no 4.


31 Oct 14:31

He says the person called by W/O Bosch did not testify.

And the State did not make an application to have the hearsay evidence admitted.

Daubermann says there was no ruling made on the admissibility of the hearsay evidence, as no such application was made.


31 Oct 14:31

He says that the reliability of this statement depended on the credibility of the person who answered the phone.

Daubermann says this evidence is essentially hearsay evidence.

Daubermann says Sibeko did not agree to the admission of the said hearsay evidence.


31 Oct 14:30

Daubermann goes through the court record relating to when Sibeko was arrested in his mother's house and the cellphone was recovered.

Daubermann is now going through the record relating to the matter of RICA details linked to the cellphone.

Daubermann says that according to Bosch's evidence, the person who answered the phone said that he was Zolani Sibeko.


31 Oct 14:23

Daubermann deals with how the state linked the cellphone to Sibeko.

Wherein W/O Bosch linked the cellphone to Sibeko through pretending to be a rep from a cellphone company and wherein he told Sibeko that he had won a R500 voucher.


31 Oct 14:17

Daubermann resumes.

Begins dealing with the evidence relating to Sibeko.

Starts with the cellphone linked to Sibeko.


31 Oct 14:16
and court is in session.

31 Oct 14:12
And the accused are back.

31 Oct 12:47

Daubermann about to discuss the evidence led.

Court adjourns to 2.15.


31 Oct 12:46

It is therefore essential for the State to prove that he agreed with the perpetrators to proceed with the act.

the State has not done so, then that is the case against accused 4.

*the end of the case*


31 Oct 12:45

There is no evidence to prove who did what.

The difficulty is, in order to find that there was common purpose, you would have to find that the accused performed some act that associated him with the events.

In the case of accused 4. (Sibeko) I point out that there is no allegation that he took part in the kidnapping, robbery or murder.


31 Oct 12:44

Daubermann says there are no allegations in the facts as to who had done it.

My lord, in respect of the critical acts, there are no allegations to say who was involved in the critical acts.

There is no specific allegation against Nenembe in terms of what his role was in those specific acts.

The State would have to prove he was acting in common purpose.


31 Oct 12:44

Dauberman says that there are no clear allegations against Sibeko in the summary of facts.

He says that on that basis alone, the case against Sibeko should fail.

"The deceased was kidnapped just outside the complex. The deceased was manhandled and forced into the motor vehicle. Her cellular phone was immediately taken from her and the sim-card was removed from the phone."  by whom?


31 Oct 12:43

11. Accused 2 and 3 travelled to an ATM in Kwanobuhle where they attempted to withdraw money from the deceased's credit card account.

They were unsuccessful. At 7h25 they were, however, successful in withdrawing an amount of R1 500 from the cheque account of the deceased.

They then travelled to Port Elizabeth attempting to meet with Siyoni.

A further two amounts of R1 500 and R500 were withdrawn from the deceased's credit card.

Later in the day, a number of further attempts were made to withdraw monies from the accounts of the deceased, without any success.

One of the bank cards of the deceased was swallowed at an ATM in Kwazakhele after an invalid pin number was entered.


31 Oct 12:41

10. They sped off and drove to a secluded area in close proximity to the Rooihoogte Road, Kwanobuhle where the vehicle was stopped.

The deceased was taken from the motor vehicle. The items, as stipulated in the indictment, were forcefully removed and/ or taken from the deceased.

She was threatened to disclose the pin numbers to her bank cards.

The deceased was taken a short distance away from the motor vehicle where she was shot twice from behind, both times being struck in the back.

As she lay on the ground a third shot was fired at close range striking the deceased in the head.

Accused 2 informed Siyoni that the deceased had been killed.  


31 Oct 12:39

9. On the morning of 21 April 2015 accused 2 again travelled from his residence to Kwazakhele/ New Brighton where he fetched accused 3.

From there they travelled to Stellen Glen Complex. They arrived at the complex shortly after 6h00.

Accused 2 was dropped off outside the complex whilst accused 3 circled the area with the Toyota Etios.

As the deceased exited the complex accused 2 telephoned accused 3 to return to the complex.

The deceased was kidnapped just outside the complex.

The deceased was manhandled and forced into the motor vehicle. Her cellular phone was immediately taken from her and the sim-card was removed from the phone.  


31 Oct 12:38

8. On the morning of 15 April 2015, accused 2 travelled from his residence to Kwazakhele/ New Brighton where he fetched accused 3 and accused 4. From there they travelled to the Stellen Glen Complex in Deacon Road, Kabega Park, the residence of the deceased. They circled the complex on a number of occasions between 6h08 and 6h21 looking to find the deceased. They were however unsuccessful.

The morning of 16 April accused 2, accused 3 and accused 4 again returned to the Stellen Glen Complex.

They again circled the complex between 5h55 and 6h21 looking for the deceased.

From here they travelled to the Swanepoel residence trying to trace the deceased.

They were unsuccessful and again returned to the Stellen Glen Complex looking for the deceased. 


31 Oct 12:33

The State nailed its colours to the mast and that is the case that they have to meet, not any other case.

I would like to take your lordship to the allegations now, as set out in the summary of substantive facts.


31 Oct 12:31

In paragraph 8 of the substantive facts, the State makes specific allegations to the role of Nenembe and Sibeko.

The facts that the State intend to prove are the allegations as set out in the summary of substantive facts.


31 Oct 12:29
Daubermann says there has been no application for an amendment or a change of charges by the State.

31 Oct 12:25
He is now dealing with obligations on the State relating to what should have been done in relation to the accused.

31 Oct 12:23
Daubermann reads case law relating to what makes an expert.

31 Oct 12:21
Daubermann is now dealing with the issue of expert witnesses.

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