Update – January 14, 2015
Captain Gerhard van Wyk was discharged from hospital and concluded his evidence in the first week of this year. He spent three days on the stand. In essence, he continued to defend his investigation while facing questions about the evidence he gathered, his methods and credibility (the defense made claims about events dating back more than 20 years). The case has been postponed to mid April.
December 8, 2014
For a while, it seemed like the #ColdCase trial was on track to finishing this year. More than two months were set aside for it to wrap up in what was effectively the third session (there had already been two postponements since the matter began in February). Despite fierce opposition from the defense, the state was working its way through its witnesses, pushing towards putting investigating officer, Gerhard Van Wyk, on the witness stand to pull all the evidence together.
Since the last update, prosecutors Herman Broodryk and Namika Kowlas were forced to bring Betty Ketani’s daughters up from the Eastern Cape to testify. There was a dispute from the defense about the whether all of her children had different fathers, an important issue for the DNA leg of the case. Bulelwa and Lusanda Ketani made the journey to Johannesburg.
After them came state forensic pathologist, Professor Gert Saayman, who had also testified in the Oscar Pistorius trial. His role was to give hypothetical evidence about Betty’s murder. The actual killing. Remember, the state argues she was stabbed with a steel knitting needle-like object (as per Conway Brown’s evidence). So Saayman testified about the human skull and what kind of damage such a weapon could do. He also took the court through how a body decomposes and whether Paul Toft-Nielsen’s evidence could be true (what was found in the shallow grave, how the skeleton was thrown away in a river, etc). The professor was a formidable witness, much like professor Thomas Parsons from the Bosnia laboratory. However, despite his knowledge and experience, his evidence is speculative because no post mortem was ever possible in this case. The body – save for a few feet bones – has never been found.
Next, the court heard a lot of medical evidence relating to Carrington Laughton’s first wife, who is mentioned in the hidden confession. For prosecutors, it was important to add this piece of the puzzle because the letter specifically mentions her suicide attempt in 1999 and the date it happened. The medical records, therefore, corroborate the confession and are another bit of circumstantial evidence. As always, there was a great deal of legal fighting over which documents were admissible and which were not. This drained entire days.
Midway through November, Captain Gerhard Van Wyk eventually took to the witness stand as the state’s last witness. He’s a crucial witness because as the investigating officer he was involved in every aspect of the case. He carried the docket, took statements and compiled all the evidence. It was always expected that he would spend a week or two in the hot seat. But, almost from the very beginning, it became clear that Van Wyk was not well. He complained of headaches and struggled to read exhibits. He was booked off for several days and eventually landed up in hospital. It was feared his stress had morphed into diabetes. In a case full of twists, the investigating officer being hospitalised for an “acute stress reaction”, and being booked off for a month, was low on the expectation radar.
Van Wyk had managed five days before the trial ground to a halt yet again. The defense complained and promised to launch a new bail application, given the lengthy postponement. The trial judge was asked to hear it but, after considering submissions from both sides, declined, saying a bail application would force him to make credibility findings, which would complicate things later down the road.
So as things stand, the trial will resume on January 5, 2015. But only for a week. This will hopefully be enough time for the state to close its case (once Van Wyk is cross-examined) and for the defense to launch their Section 174 application (which they will more than likely do). Then, the trial looks set to be postponed once more, this time to April. Why? Because the judge is away on leave and lawyers like Laurence Hodes are not available earlier, having pushed all their cases forward.
With four more months in custody, it’s hardly surprising that Laughton and the Ranger brothers (Carel and David) are talking about a new bail application. They will also argue that the state’s case is done, so they can’t interfere with it. Should a new bail battle break out, it will be fascinating to watch. Laughton and his co-accused have already been denied bail, appealed and lost and then tried again (on new grounds) but failed. A new attempt at this stage would, amongst other things, explore the strength of the state’s case.
The Section 174 application will be even more interesting. This is an application which asks the court whether the state’s case is strong enough for the defense to even open its case. Glenn Agliotti got off a murder charge on a Section 174. As did Shrien Dewani earlier today. In the Dewani case, the state’s case crumbled and the judge found that the only way the accused would ever be found guilty is if he incriminated himself while testifying. Judge Jeanette Traverso said that while she sympathized with Anni’s family, courts can’t allow emotions inside, or face the possibility of anarchy. She spoke of the evidence given by the state’s “accomplice” witnesses as a “garbled mess”, which is about as bad as it can get for a public prosecutor.
I would bet that the Dewani trial (along with others) features in Laurence Hodes’ Section 174 application, should it be made. And it surely will, even if the defense asks for some – not all – of the charges to be withdrawn. In the Ketani case, there are three 105A accomplice witnesses (Conway Brown, Paul Toft Nielsen and Dirk Reinecke) and a 204 witness (Andre Coetzer). All of these witnesses have serious credibility problems and have lied in the past. But the Ketani case is also different because there is handwriting evidence and forensic DNA evidence, which has been led by the state. In other words, the entire case does not rest on the evidence of the accomplices. So as I’ve said before, I would be surprised if a Section 174 succeeds in this case, but I will be watching it with interest.
To wrap up: There have now been 58 court days and 35 state witnesses. Which is an astonishingly long trial, considering the defense is yet to open its case. Hopefully, this is the last major delay.
Until next month.