AS IT HAPPENED: Defence regards State's evidence inadmissible in Panayiotou trial

2017-06-29 09:27

Defence attorney for Panayiotou's co-accused Zolani Sibeko and Sinethemba Nenembe, Peter Dauberman, has argued that the State had not presented enough credible evidence on which to convict the accused.


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Last Updated at 16:35
29 Jun 11:16

Chetty asks Stander if he wishes to respond.

Stander says he will be responding but needs time to prepare his rebuttal.

Court adjourned to tomorrow 9:30.

29 Jun 11:15

PD: Their names have hardly been mentioned in this trial.

PD: I have been sitting here twiddling my thumbs.

PD: I ask that the court dismiss the case against accused 3 and 4 under section 174.

PD: Completes his application.

29 Jun 11:14

PD: He has no case to meet.

PD: You have no evidence regarding to their business, their personal affars, their acquaintances.

PD: I would submit that you are unable, that a reasonable man acting on the evidence before you, can say beyond doubt that they are guilty.

PD: There is no possibility a reasonable man, acting carefully, can convict accused 3 and 4.

29 Jun 11:12

PD: Why wasn't that woman called to give a statement?

PD: She may have come here and said that the phone was her phone. I don't know.

PD: Anyone could have said I am Zolani Sibeko.

PD: It is not for him to come and say that he wasn't using that number. No one has come to this court to say that he was using that number.

29 Jun 11:10

PD: Explains how the phone was seized.

PD: That phone was not found in the possession of Mr Sibeko.

PD: Bosch said he never found another phone in the room, but he was never asked if he conducted a thorough search of the room.

PD: We can't assume that the phone he was referring to and the phone recovered were the same.

29 Jun 11:08

PD: That's not the end of his evidence. He says they went to the address in Greenbushes. 

PD: They knocked on the door and this is what happened.

PD: They searched the premises and in the en-suite, they find Mr Sibeko.

PD: They asked him where's their phone and he says it's in the bedroom.

29 Jun 11:06

PD: W/o Bosch set a little trap.

PD: He was asked to find the details of the owener of the phone.

PD: He called, offered him a prize, he answers and gives his details as Zolani Sibeko and gives his address.

PD: The fact that someone gave his details as Zolani Sibeko does not mean it was Zolani Sibeko.

29 Jun 11:05

PD: That is the end of their case, it hasn't proven that he was in possession.

PD: To simply assume that the cellphone number is the same as a person. A cellphone number is not a person.

PD: That is the end of the State's case against accused number 4.

PD: I am going to go further that the State has even proven that accused number 4 was using the cellphone during 2016.

29 Jun 11:03

PD: So what does w/o Bosch say, he say that in 2016 accused no 4 was in possession of that SIM card.

PD: The crime took place a year earlier, has he proven that he was in possession of that SIM card back then?

PD: Even if I am in acceptance of the State's evidence, there is no evidence to show that accused 4 was in posession of that SIM card.

PD: The State's entire case is based on his possession of that SIM card.

29 Jun 11:01

PD: The evidence of w/o Shane Bosch and also the evidence of the RICA.

PD: The phone was never RICAed to accused 4.

PD: W/o Bosch told your lordship that simcards to which cell numbers are attached frequently change hands.

PD: That they can be aquired for as little as R5.

PD: And that criminals frequently change numbers.

29 Jun 10:59

PD: Be that as it may, I will accept that that was the cellphone number that accused 3 was using at that time.

PD: That doesn't matter, the State still hasn't made its case against him.In relation to accused 4, the case is different. 

PD: The State has not proven that accused 4 (Sibeko) was using that number at that time.

29 Jun 10:58

PD: Ms Botha said that the evidence doesn't show that they moved with Vumazonke in the car.

PD: Coming to the phone number used by accused 3, the evidence before your lordship is not in dispute.

PD: I objected to the admissibility of the records at the time and it was overruled, and what your lordship should have done is hold a trial within a trial relating to the admissibility of the evidence.

29 Jun 10:57

PD: My learned friend is going to say the calls and the vehicle movements will show how things played out.

PD: But that is merely a theory.

PD: It is pure speculation.

PD: The evidence doesn't place accused 3 or 4 in the vehicle.

29 Jun 10:55

PD: The State has shown no evidence relating to the relationship between Vumaznke and accused 3 and 4.

PD: Were they friends? Did they have family connections? Did they spend time together?

PD: That calls were made on certain dates around a certain time; is neither here nor there.

PD: Otherwise everyone who called Mr Vumazonke on a certain day should be arrested.

29 Jun 10:53

PD: Even if all my arguments are wrong up to now.

PD: Let's say they have proven the cell record, that the unconstitutionality is irrelevant, that he has proven the location of the cellphone towers.

PD: Even if he has done all that, he has still failed to make a case against my clients.

PD: People make calls to each other all the time.

29 Jun 10:51

PD: She said she told your lordship, the evidence before court was that accused number 4 was scouting in front of the deceased's residence.

PD: When I pointed out that the cellphone moved around, she conceded that she was wrong and agreed that there was no scouting on that day.

PD: refers to court record.

PD shows how Botha agreed with the fact that her opinion that accused number 4 was scouting on the 11th of April 2015 was incorrect.

29 Jun 10:49

PD: The press is correct, she did come to connect the dots, but she never went beyond that.

PD: She is not an expert, she is not a police officer, she knows nothing about modus operandi of criminals.

PD: She is not a psychologist, she can't tell your lordship when people would reach out and connect.

PD: She made mention of scouting, but that is an opinion that she can't make.

29 Jun 10:47

PD: Your lordship does not have to take judicial notice of that.

PD: That is why I did not challenge it, there was no need to, it simply doesn't take the State's case any further.

PD: My learned friend, called Ms Botha, she is some sort of expert in some field.

PS: As the press put it, she was called to connect the dots, she is an expert in connecting dots.

29 Jun 10:45

PD: Therefore that call, that connected to that tower, doesn't show anything, so that does not assist the case.

PD: In fact, we don't know what the range of that tower is, because no expert has come to testify what the range of that tower is.

PD: That is a further minimum requirement, that my learned friend should have submitted. He should have called an expert who could give that evidence.

29 Jun 10:41

PD: It is one of the useless maps Mr Kanti produced.

PD: Your lordship will see that this tower is plotted in a rural area. It is near where the body was located.

PD: The difficulty is, that tower is in a rural area, so even if one is to accept Mr Kanti's evidence, the range of such a tower is up to 33km. 

PD: So then, accused no 4 could be anywhere within a 33km radius.

29 Jun 10:39

PD: How does one make a ruling on the range of towers.

PD: On the evidence before you, you don't know the range of towers.

PD: So my learned friend fails, because he can't show how close they were to a specific base station.

PD: He will refer you to the tower called Rockland Hatchery tower - PE MTN.

29 Jun 10:36

PD: Let me take you to Ms Du Plessis' evidence, she was with MTN and is now with cell C.

PD: Again refers to the record.

PD: Average range of towers varies between 1 and 2km.

PD: So 500m, 3.5km and 33km, and she is now talking of 2km.

29 Jun 10:35

PD: I will show you.

PD: Refers to court record.

PD: Shows there are three main types of towers, and that have 500m, 3.5km and then up to 33km.

PD: He should have asked, which towers on the maps have which range?

29 Jun 10:34

PD: Calls up the map, which shows the range, with various colours on the map. My learned friend never asked Mr Kanti what the colours mean.

PD: Coming back to the range, he was required to prove the range of the towers, did he do so?

PD: No, he failed miserably. 

PD: He has placed contradictory evidence on the range of the towers before court.

29 Jun 10:32

PD: A further requirement for my learned friend to succeed in this matter, he was required to prove what the footprint, sometimes referred to the range, of each tower.

PD: He called reps from 3 companies.

PD: None of the three called were experts in how cellphone towers work.

PD: But let us leave that. What did they say about the range and footprint of these towers?

29 Jun 10:29

PD: My learned friend should have called the people who did the actual plotting.

PD: This evidence is not evidence of the actual towers.

PD: What this means is that the state has failed to prove the location of the towers, and if it has failed to prove the location of the towers, it has failed to make its case against accused 3 and 4.

29 Jun 10:27

PD: Shows that Mr Kanti told the court that he didn't do the plotting of the cell towers himself, he got it from the planning department and that he didn't have access to the information itself.

PD: He then goes on to explain the maps, and explains the towers.

29 Jun 10:26

PD: And, in this case, the majority of the towers concerned would be MTN towers.

PD: The only evidence your lordship heard regarding the MTN towers was from Mr Kanti of MTN.

PD: Reads from the court records relating to Kantis testimony relating to the locations of cellphone towers.

29 Jun 10:23

PD: The cellphone belonging to Vumazonke, allegedly the cellphone belonging to Sibeko and the cellphone allegedly belonging to Nenembe.

PD: At no time have accused 3 and 4 admitted that these cellphone numbers belong to them.

PD: So, as a bare minimum, the State was required to prove the location of where the relevant cellphone towers are located.

29 Jun 10:21

PD: How must accused 3 and 4 know about the cellphone records.

PD: I am going to deal with the case that, even if you apply that presumption, the State still has no case against them.

PD: There are in essence three main cellphone numbers that are being contested.

29 Jun 10:17

PD: I am not here to see that my clients get a fair trial, you are, my lord.

PD: I want to refer your lordship to sub rule 9, of rule 16 (a)  

PD: Your lordship could simply have given notice to the relevant persons.

PD: My submission is that my lordship was clearly wrong in that decision.

29 Jun 10:11

PD says the rule that Chetty used to dismiss the ruling, did not apply to criminal proceedings.

PD: I would have had to ask your lordship to postpone proceedings, to give the 20 days notice, which would have been contrary to my clients rights to a speedy trial.  

29 Jun 10:09

PD: Refers to his application that he raised previously where he had challenged the consitutionality of the procedure.

PD says he had raised the point, and that the State had made its argument, and that Chetty had then adjourned and the following day had dismissed the application on the basis of procedure.           

29 Jun 10:09

PD: In this case, the state relies mainly on cellphone records to prove its case against 3 and 4.

The cellphone records are critical to your decision, and I'm sure he will concede that, without the cellphone records he has no case.

PD: In seeking to prove the cellphone record, he is relying on a section of the law, which requires accused 3 and 4 to prove, which I deem to be unconstitutional,  that it is up to them to show the records are incorrect.

29 Jun 10:07

PD: The position is simply the state must first put up a prima facie case.

PD: Only then is the accused required to arise to the challenge and answer the allegations.    

PD: In this case the state has not done so.

29 Jun 10:05

PD: My learned friend is going to ask that you infer that accused 3 and 4 were involved in the kidnap and murder.

PD: But he does not even get past first base.

PD: I submit that he is going to ask you to draw inference based on speculation, not fact.

29 Jun 10:03

PD: There is no eye witness acounts linking them, there is just circumstantial evidence.

PD: There is a belief that direct is better than circumstantial, and that is not always the case.

PD: But one needs to look at how one tests circumstantial evidence.

29 Jun 10:01

PD: The State would therefore have to prove that there was a prior agreement, and prove that they conspired to murder her.

PD: It follows that accused number 4 must be aquitted of all charges on that basis alone.

PD: No my lord of course, the State has produced no direct evidence against accused 3 and 4 at all.

29 Jun 09:59

PD: The State's case is that they drove around and looked for the deceased. That's the State's case.

PD: On this alone the charges of conspiracy should be dismissed.

PD: Your lordship would have noticed, that the State's case is not that he was present during the kidnapping and murder.

PD: Accused 4 (Sibeko).

29 Jun 09:58

The conspiracy need not be express : it may be tacit.

In the last instance there will be a conspiracy only if other party(ies) agree to the scheme.

A court may infer a conspiracy from a person's conduct, provided that the inference is the only reasonable one to be drawn from the proven facts.

29 Jun 09:56

The Act

There should be at least two people for the crime of conspiracy to be committed.

Before there can be a conspiracy, X and Y or more people must agree with one another to commit a crime. The act thus consists of the entering into an agreement which is often expressed by the statement.           


29 Jun 09:55

PD: So what is the facts?

PD: There is no reference there that they reached an agreement to kidnap the deceased, or to murder the deceased.

PD: In fact there is no reference to an agreement at all, and even if it accepted, there is no evidence of a conspiracy.

PD: Refers to the case against Agliotti.

29 Jun 09:53

7. Early morning of 13 April 2015 accused 2 travelled from his residence in Kwanobuhle to 25 Ruth Street. He arrived there shortly after 6h00 in the morning.

On 14 April 2015 accused 2 travelled from his residence to Kwazakhele where he fetched Siyoni. Together they travelled to Deacon Road, Kabega Park, where the residence of the deceased was again pointed out to accused 2.

From here Siyoni and accused 2 travelled to Riebeeck College in Uitenhage, the school where the deceased was a teacher.

They travelled along the same way as the deceased would drive to school. On the way to Uitenhage Siyoni phoned accused 1 to confirm the details.

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. 

29 Jun 09:52

PD: It clearly says in paragraph 2, the facts it intends to prove as set out in substantive facts.

PD: refers to paragraph 7 and 8 of the substantive facts, relating to events prior to 25 April, i.e. the conspiracy part of the charges.

29 Jun 09:51

PD: The law is quite clear the accused is entitled to these particulars.

PD: The State replies.

PD: Reads the State's reply.

PD: This is crucial "The State intends to rely on the allegations as set out in the substantive facts"

29 Jun 09:49

PD: The State's case is in fact based entirely on theory.

PD: It has become apparent that the State likes surprises, so I have kept a few surprises for him. 

PD: I requested further particulars, and I think he may have forgotten about that, as it occurred sometime last year.

PD: Reads his request submitted to the State. 

29 Jun 09:47

PD: The onus is on the State to prove the guilt.

PD: He must be morally certain of the guilt accused.

PD: I submit that no man can be morally certain of the guilt of accused 3 and 4. 

PD: The effect of the burden of guilt, the State must prove every fact upon which it intends to rely beyond reasonable doubt. 

PD: My lord, you have given him so much rope in this case that he may think he has proven the involvement of accused 3 and 4. 

29 Jun 09:45

The section that PD is quoting, word for word:

To therefore summarise the legal position regarding applications in terms of section 174:

(a) An accused person is entitled to be discharged at the close of the case for the prosecution if there is no possibility of a conviction other than if he enters the witness box and incriminates himself;

(b) In deciding whether an accused person is entitled to be discharged at the close of the State’s case, the court may take into account the credibility of the State witnesses, even if only to a limited extent;

(c) Where the evidence of the State witnesses implicating the accused is of such poor quality that it cannot safely relied upon, and there is accordingly no credible evidence on record upon which a court, acting carefully, may convict, an application for discharge should be granted.

29 Jun 09:44

PD: In essence the test is that the close of the State's case when discharge is considered.

PD: Legal position is summarised in Dewani.

PD: To summarise the legal position in terms of 174.

PD: (a) an accused may be discharged if there is no evidence, other than if he enters the witness box and implicates himself.

29 Jun 09:42

TP: Apparently Mr Daubermann has an application.

PD: My learnered friend was clearly anticipating an application, so I did not want to disappoint him.

PD: Brings application under section 174, wherein he will argue that the state has no case against accused 3 and 4.

PD: The precident has been set in the Dewani case.

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