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Holding state agencies to account has just become harder

Serjeant at the Bar

The Marikana inquiry may at some point in the distant future provide guidance on how to ensure police accountability to the public it serves.

Supreme Court. (Delwyn Verasamy, M&G)

Police conduct has been much in the news of late. The Marikana inquiry may at some point in the distant future provide guidance on how to ensure police accountability to the public it serves, but a recent judgment may already have weakened this important principle.

Frederik van der Vyver was charged with the murder of Inge Lotz in 2005. The trial was one of the most publicised in recent times, having all the material of great drama: a beautiful young woman student brutally murdered in leafy, conservative Stellenbosch and her lover charged with the murder. Anthony Altbeker wrote a fine book about the criminal trial, describing its many twists and turns until Van der Vyver was finally acquitted.

Van der Vyver then sued the minister of police for damages on the grounds of malicious prosecution. Judge Anton Veldhuizen found for Van der Vyver on the merits of the claim, a decision taken on appeal to the Supreme Court of Appeal.

The most important issue concerned a link between a bloodstain on the floor of the deceased's bathroom and a pair of sneakers worn by the accused. The latter had claimed as an alibi that he was at his office in Pinelands when the murder took place. If the state could prove that the bloodstain on the bathroom floor was made by the accused's shoe, that evidence would have destroyed his alibi.

The police forensic expert, Superintendent Bruce Bartholo­mew, claimed that the bloodstain was definitely made by the accused's shoe. The police experts in Pretoria did not share his enthusiasm for this conclusion. Bartholomew was, however, a determined man: he sought and obtained permission to travel to the United States to consult the leading expert on footprints, WJ Bodziak. Although Bodziak strongly disagreed with Bartholomew's findings and told him so, the tenacious police officer returned home claiming the opposite – that Bodziak agreed with his findings.

A few months later, police legal representatives spoke to Bodziak, who informed them that, in his opinion, there was no link between the shoe and the bloodstain. The state prosecutors were informed accordingly and met Bartholomew to discuss the matter. He admitted he had misrepresented Bodziak's position. Still the state persisted with its case, and Bartholomew doggedly continued with his original theory, which formed the basis of his testimony to the court.

Only after great expense incurred by the Van der Vyver family did the court hear the truth, when Bodziak was flown out to give evidence and totally discredited Bartholomew's testimony.

The trial court held that, in the absence of this disingenuous evidence, the state would have concluded that there was no basis on which to continue the prosecution.

On appeal, Judge Fritz Brand held that the evidence of the state prosecutor was that he would have continued the prosecution, notwithstanding the absence of the Bartholomew evidence about the shoe and its connection to the bloodstain. Brand found the test adopted by the court – of whether the prosecutor's conduct was unreasonable – was not applicable; the critical point was whether his evidence, tested without the benefit of hindsight, could be rejected by the court. That is to say: he would have proceeded with the trial even without the Bartholomew evidence.

That finding allowed the appeal court to conclude that a causal link sufficient to support Van der Vyver's claim of malicious prosecution had not, on the probabilities, been proved. In arriving at this conclusion, the court was confronted with a Constitutional Court decision concerning a claim for damages from a prisoner who had contracted TB in prison. In that case (Lee vs Minister of Correctional Services), the Constitutional Court, in finding for the prisoner, had held that the necessary causal link was not to be determined with mathematical precision but rather by way of the exercise of common sense, based on the practical way in which the ordinary person's mind works against the background of everyday life experience.

Brand asserted that this test, although flexible, was in essence no different from the traditional "'but for' test": but for the decision to continue with Bartholomew's evidence, the state would have abandoned the prosecution. Given the evidence of the prosecutor, which could not be rejected, this link had not been proved.

That reading of the test for showing that the pursuit of the discredited forensic evidence was not a ­sufficient cause for the continuation of the prosecution may well prove to be an incorrect application of the Lee test. Is it the outcome of common sense that a trial would have continued without the only powerful evidence the state had to show the alibi was suspect?

By answering that question against Van der Vyver, the appeal court may have struck a major blow against the law holding the police and prosecution to principles of integrity and openness.  

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