Almost eight months since the trial of Angy Peter began in February Judge Robert Henney announced on Wednesday that he will hand down judgment on September 30.
Final heads of argument in this matter were presented by the state prosecutor and defence lawyers in the trial at the high court in Cape Town this week. This comes soon after the commission of inquiry into policing in Khayelitsha ended last week, when commissioners Kate O’Regan and Vusi Pikoli presented the final report to Western Cape Premier Helen Zille.
Angy Peter and her husband Isaac Mbadu were arrested in October 2012 on charges of the kidnapping and murder of Rowan du Preez.
Peter, a Social Justice Coalition activist, was instrumental in collecting evidence, which led to the establishment of the Khayelitsha commission.
Peter and Mbadu have maintained their innocence, saying they were both at home with their two children at the time of Du Preez’s kidnapping and killing by necklacing. Peter was then heavily pregnant (in her final trimester) with her fourth child.
The case of Peter and her co-accused Mbadu, Azola Dayimani and Christopher Dina began in February this year. Since then, the state has led numerous witnesses including family and friends of the deceased, South African Police Service officials and medical personnel, who treated the deceased.
Holes in the state’s case
“I pity anyone faced with the defence in this case. There are holes that you can drive buses through,” concluded defence lawyer advocate William King, acting for Peter and Mbadu.
In his closing arguments, King said, “The state has not looked at the most important evidence: the evidence of the accused. The state can never argue the alibi defence is false. It remains reasonably possibly true.”
King said the alibi raised a defence that someone else committed the crime and that the state must prove someone else did not do it. “If you don’t investigate the alibis you can never say we have proved beyond reasonable doubt that you [the accused] did it.”
According to Judge Henney, the police only became aware of the accused’s alibi through a Mail & Guardian report. “It would seem [Stanford] Muthien [the investigating officer in this case] never raised the question of the alibi with them [the accused],” said Henney.
“In a criminal case, if an alibi is raised, you have to investigate it. In this particular case, when the state became aware of the alibi, why was it not investigated?” asked Henney.
State prosecutor Phistus Pelesa conceded, “We did not follow up.”
Credibility of witnesses raised
“The story falls apart as between the witnesses. They tell different stories about the event,” argued advocate King. “John Ndevu [a witness] is the thorn the state has in its case. This case should have stopped when Ndevu was found to be lying. Everything after this was a lie.”
In his sworn affidavit in 2012, Ndevu said he had not seen anything, but heard someone abducted Du Preez. However, when testifying in court this year, Ndevu said, “I was wrong in those statements.” Ndevu changed his testimony, saying he saw Du Preez being beaten up by the four accused outside the Pink House in Khayelitsha.
King said a factor the court had to take into account was that the investigation by Muthien was not done fairly and impartially. “There was no proper investigation, or the investigation that could have taken place did not, because it suited the police to have the accused, accused.” According to King, the investigation was done “wilfully and purposefully inadequately.”
Last week the court called Muthien to testify. During his testimony, it emerged that Muthien had not officially commissioned (sworn to truth) the statements he took from witnesses of Du Preez’ alleged accusation of those responsible for his attack before his death.
In addition, Muthien had allowed one witness, Desiree Jack, to translate the statement of another witness, Asavela Viki.
Judge Henney asked the state what guarantee there was that the evidence of Viki was not influenced by Jack.
Intoxication
On that fateful Saturday night in October 2012, Du Preez, who allegedly named Peter and Mbadu as his attackers before he died, was highly intoxicated.
Earlier this year, Dr Elmin Steyn, a trauma specialist in burns, also called as a witness for the defence, testified that a person suffering the degree of burns as Du Preez, is incapable of functioning. After he was kidnapped, a tyre was placed around Du Preez’s neck and set alight before he died.
But the deceased was not the only one intoxicated at the time, some of the witnesses were as well.
Judge Henney asked, “How reliable is the evidence of Asavela Viki in respect to what happened that night? It seems she was intoxicated. Shouldn’t one look at the evidence with caution and skepticism, especially when it implicates the accused? The question is can we rely on it at all?”
When Henney asked prosecutor Pelesa who was responsible for setting the tyre alight, he responded that there was “direct evidence that the accused are responsible. The accused are not as clean as they want the court to believe.”