01 November @ 10:15
The trial between the State and Zwelethu Harold Joseph Mthethwa, accused of the murder of Nokuphila Kumalo, is due to conclude before the court goes on recess in mid-December 2016.
Mr William Booth (defending Mthethwa) has argued that Kumalo didn’t necessarily die from blunt force trauma, a matter the court will decide on. Mthethwa has pleaded ‘not guilty’, is still out on bail, and will not be called to testify.
The last witness for the defence will be the DNA expert, on 07 November 2016 @ 09:30.
The defence calls their second-to-last witness, Wouter De Swart of Fox Forensics – a private investigation company which, according to it’s website, has received enough ‘hoax calls’ to now only be contactable via email.
The witness is sworn in.
De Swart’s background is that he served the SAPS from 1967-1983, and left the SAPS for personal reasons. He is currently M.D. at Fox Forensics in Durbanville, Cape Town. Today he is testifying in regards to proper investigation procedure in a criminal case. De Swart has visited the scene of the alleged offence, is aware of the circumstances, and has been provided the documents pertaining to this case.
Mr Booth starts by introducing the topic of CCTV footage downloading, and custody thereafter.
In recent years, the usage and assistance of CCTV footage has become more apparent. In 2007 there was a murder case De Swart was involved in, and he found a paper from the UK Home Office helpful – a guideline of procedures which should be followed regarding CCTV footage. De Swart follows a summarised checklist of this in his own work.
Page 5 of the above-mentioned specifies the advised downloading procedure. Highlights of this procedure, as relayed by De Swart, are listed below:
- Willing donation / confiscation / retrieval by court order, of the harddrive from the owner.
- Procedural notes are to be constantly written down (in a pocketbook for example), and additional photos confirming that procedure are useful.
- Identify the camera system (make, model, and those of the cameras themselves). Also note the amount of cameras connected to the system. Check that the date and time is consistent to another time source, and what the time difference is – as they often are out by a few minutes. Then, removal of the harddrive by the Senior Investigating Officer.
- Remove the harddrive (wrapped in bubble wrap, in an evidence bag) to the lab to make a master copy. An hour buffer on each side of the incident is advised. Once copied, a check must be run so that the copy that has been made can be certified as a true copy.
- Copies should be taken in the same format of the original, to preserve footage quality.
- The original harddrive should be stored in the evidence bag, with the master copy, and kept in an evidence storeroom. Working copies can have been made in the meanwhile.
Other details to note:
- Override time: 1TB can hold footage for 30 days.
- Consider downloading from all the cameras present at the time period.
- Pocketbooks are admissible as evidence. A pocketbook is used to record step-by-step account at the scene, and a case file is then opened at the office as soon as possible. These methods should be used in case of the person retrieving the information forgetting any steps.
- Then a replacement harddrive, the closest possible to that which was confiscated, is given to the footage providers as a courtesy.
- In SAPS’s case: The sealed evidence bag is put into the SAP13 which is a vaulted storage facility with a 24hour guard who is trained to handle evidence. The SAP13 register will show all movement of the evidence.
Mr Booth then begins with his points on the case at hand:
- The original harddrive in this case was not taken by the SAPS, only a copy on a flashdrive.
- The flashdrive was kept in the Woodstock SAPS office (not in the SAP13) for a period of a year before being handed to the court.
- The investigating officer Warrant Officer Smith’s pocketbook is missing.
- Evidence has been ‘destroyed’ and not recorded as such.
- Witnesses were shown the CCTV footage before they gave their statement.
The following dialogue has been taken from the official court transcription. The dialogue has however been restructured slightly to fit to the individual points listed above, and provide a more coherent read.
Booth: Should the police have taken the original device?
De Swart: Yes, they should have, M’Lady, devices. [for each building on either side of the road: Tollgate, and Stockyard]
The flashdrive was the master copy, and it should have been stored with the original in the SAP13 evidence vault. Instead, the Woodstock SAPS kept the flashdrive in their office for about a year, before it was handed to the court. Unless it held a mere working copy, the device should not have been kept in the office.
Booth: It’s wrong to have kept it in an office.
De Swart: Yes, M’Lady, that is… unless it was a working copy, that’s fine. A working copying, M’Lady, goes with you everywhere, as an investigator.
De Swart: The investigating officer will note, or should note in his pocketbook he receives evidence so and so and so from so and so, whoever did the downloading, for handing in to SAP13. A pocketbook, M’Lady, is basically a diary of what you do every day.
Booth: In this particular case, the defence has, as you’re aware, has asked for the investigating officer‟s pocketbook, but it is missing.
The investigating diary included in the docket: The purpose if this diary is to record every aspect regarding the case as far, and also to show what still needs to be done.
Evidence from a security guard, which supposedly included a registration number, vehicle make and type was ‘destroyed’, and is lost. This statement was not ‘bagged and tagged’ as the evidence it indeed would have been. It could have been critical evidence, and included the witnesses handwriting, fingerprints, and the contents of the statement.
No statement that the evidence was destroyed was made in the investigating diary.
De Swart: To make a comparison, the way I see it, M’Lady, is that would be the same as picking up a firearm cartridge on a scene where there was shooting and dumping the cartridge. It’s evidence.
Booth: And not mentioning that you’ve done that in the investigating diary.
De Swart: It’s wrong, M’Lady, it should be mentioned.
Booth: If one has a – as a police investigating officer has a working copy of an alleged crime scene, and you are now going around to interview witnesses, how should that process, in your opinion, be handled?
De Swart: M’Lady, if you are looking for eyewitnesses to what has happened on the scene of the crime, if you are looking for possible people – people that can possibly identify the suspect, standard procedure, and certainly according to how we‟ve been doing it for always, is to obviously approach the witness, or potential witness, identify yourself, state very clearly what the matter is all about, ask if they are aware of the circumstances and the case, explain what happened etcetera, etcetera, and if the witness is then willing to work with you as an investigator, you would take down the statement, it’s the way we do it. After that has been done, I would then say I have video footage of what has happened there, would you mind viewing the footage and give your opinion of what you’ve seen, possibly can you identify someone in there, and then show that person the footage. Of course, if the person then indeed identifies anybody positively on the footage, then you will take another statement, which becomes an annexure to the original statement.
Booth: Well in this case, every witness, virtually every witness, I think maybe only Captain Speed was excluded, were shown the video footage prior to making a statement. In your opinion?
De Swart: My Lady, I would not do it like that.
De Swart: It’ll make your witnesses biased.
Cross-Examination by Adv. van der Vijver
The State: Mr De Swart you have now sketched how you would have done it.
De Swart: Yes.
The State: But I gather from your evidence you’re not in a position to tell us how did it impact on this particular matter.
De Swart: M’Lady, no, I cannot definitely say how [it] would have impacted. I can just say that it could maybe have impacted it in a negative or positive way if you had more footage, possibly.
The State: Ja, but this is a – this is actually a very, very simple scene. This is not a crowd that has – student protest if – which is now relevant, that you have police video footage from different angles, trying to identify perpetrators, et cetera. This is a very, very simple scene. You agree with that?
De Swart: It appears to be, yes, M’Lady.
The State: Yes. And are you aware that duration of the video footage – you said in your evidence you would have taken video footage at least an hour before the incident and thn an hour after the incident. Now do you know that the footage in this particular incident, the duration is two hours?
De Swart: Yes, M’Lady.
The State: Right, so there at least you must give the police credit. They didn’t just for the six or seven minutes it took to kick the deceased to death – they took footage that is much longer, before and after the incident. You must give them credit for that. Do you agree?
De Swart: If that is what they did, most definitely, M’Lady, I will.
The State: Didn’t you watch the video footage?
De Swart: Not absolutely all of it. No, I did not.
The State: Now coming back to the hard drive, because that has been controversial in this matter throughout. Are you familiar with the Supreme Court of Appeal judgment of S v Mdlongwa? It’s a 2010 judgment of the Supreme Court of Appeal of this country. Not the UK; from this country. Are you aware of that?
De Swart: No, I’m not, M’Lady
The State: Because in that case, there the Supreme Court of Appeal has put its blessing on downloading on what we call a master copy, as being the original footage. Because that was the point, that the authenticity – because it was downloaded and the hard drive was not secured, and the Supreme Court of Appeal said, well, that’s fine. Is that news for you?
The State: And do you expect the police to replace the harddrive? Let’s be realistic in regards to the police’s budget, who do you think should pay for that new harddrive?
De Swart: I don’t know about the case referred to, M’Lady, but, surely, if the Supreme Court ruled such, then I will absolutely respect that.
The State: Now let’s be realistic, Mr De Swardt. Do you really think the police budget will cover [it] if we must take the hard drive and replace it? Who do you think will pay for that?
De Swart: M’Lady, I can only answer honestly, that is my opinion, that is what is done in other parts of the world, as I’ve stated, and yes, very well, I suppose the taxpayer then pays for that.
The State: Yes.
De Swart: Unfortunately.
The State: The – if one looks at your UK model, which you seem to draw a lot of authority from, EXHIBIT ZZ, and one looks at page 9, that diagram, it seems to me, unless I understand it not correct[ly], it’s not really the alpha and the omega that the hard drive should be secured. It seems like even in their model they make provision for those instances where you…
De Swart: Oh yes, yes.
De Swart: Most certainly, there are cases where you simply cannot have the hard drive.
The State: The – are you familiar with a booklet, if one can call it that, or maybe it’s – you can call it a book, that was brought out by Business Against Crime on the CCTV footage, how it should be secured, et cetera. Are you familiar with that booklet?
De Swart: There are various ones available. I am fairly aware of it, yes.
The State: And you know that in that particular booklet, which was also shown around here in court, that in that particular booklet it’s also not a requirement that you must secure the hard drive. Are you familiar with that?
De Swart: I’m familiar with that, yes.
The State: So it seems to be a different of opinion on this particular subject. There is … no hard-fast rule.
De Swart: Not in South Africa, no.
The State: And you, obviously – I mean, it goes without saying, but just to get it on record, you also cannot assist the Court today as to the authenticity of the video footage in this particular matter.
De Swart: No, M’Lady, I cannot.
Read more here on the CCTV footage recovery.
The State: The fact – in other words, the fact that it was not in the SAP13 does not necessarily mean that it was tampered with. Do you agree with that?
De Swart: I agree with that, M’Lady.
The State: And I see, if I look at your – you’ve provided the State with an affidavit. I just want to get to the – yes, on paragraph 8 of your affidavit you say:
“I’ve also been asked to consider the specific procedure followed by Warrant Officer Smith in regard to his investigation of this case, the way that he kept the investigating diary and the apparent loss of his pocketbook.”
Now why did you use the word, ‘apparent’? Are you suggesting that Mr Smith is not telling the truth?
De Swart: No, not at all, M’Lady. It’s…
The State: Well, it’s a very unfortunate word.
De Swart: Ja. I apologise. I did not… I did not want it to appear that I am insinuating that he intentionally, for instance, lost his book. No, not at all.
The State: Or biased. I mean, you don’t want to be…
De Swart: Ja. No, no, no. No, I apologise.
The State: And you – well, you’ve been in the police quite a number of years ago, but, surely, things have also gone missing in your time.
De Swart: Yes M’Lady.
Booth: It was put to you things go missing in your time, or things went missing in your time.
De Swart: Yes, M’Lady.
Booth: Yes, okay. But is that any justification for things going missing, that it might have happened in your time?
De Swart: No, of course not, M’Lady.
The State: They had different numbers, they couldn’t get a, let’s call it a hit on the E-Natis System, and then they decided to go to the only Porsche dealership in Cape Town, because, obviously, they want more information. There is now a Porsche on the scene. Now how would you have approached it?
De Swart: To establish a possible owner of the vehicle?
The State: How would you have approached it differently?
De Swart: M’Lady, exactly as Warrant Officer Smith did.
The State: So where did he – where – now I don’t understand. Where did he go wrong then?
De Swart: I’m sorry, M’Lady, maybe I should be a little bit more clear about it. In my experience, there is a difference in identifying a person on video footage and identifying a motor vehicle on the video footage. In this particular case, where he – where Warrant Officer Smith showed the video footage to the Porsche dealers before he actually took their statements, honestly, M’Lady, I can’t see anything wrong with that.
Court is adjourned to Monday 07 November 09:30.
The Court: It’s going – I am going to be devastated if we come here the 7th and nothing has happened, and there’s no report, or there’s a witness and there was no exchange of the report. I don’t think it’s acceptable. We do have enough time to do the housekeeping.