Court resumed on Monday 28th November @ 10:15
The defence and the State’s respective application, and objection, has been submitted to the Court. This pertains to the defence’s surprise application to reopen their case for Prof. Zabow’s report.
Booth has the opportunity to speak first. He refers to the State’s objections to Zabow’s report and restates that Zabow’s evidence isn’t hearsay, he then refers to Act 45 (see below) and reiterates that indeed this question of hearsay may only be determined by the Court once the evidence itself has been heard.
Booth again mentions that Zabow is an expert, and all that experts can do is consult the evidence they have – as of course Zabow was not present to witness the assault itself – and then give their educated opinion. Objections to that opinion can be dealt with by the State as the evidence is read.
The State will also then be able to respond, and to call their own witness, and therefore there can be no prejudice in the Zabow matter.
Booth refers to Mthethwa’s warning statement, when he was arrested three years ago, before he opted to remain silent. Mthethwa was asked to account for his whereabouts when the offence was committed, and he responded that he couldn’t remember. This was part of the evidence submitted by the State, and this is what Zabow’s report apparently corresponds with.
Booth says that, with respect, the accused should hear the evidence that has been submitted in the State’s case; that he can’t, in fact, recall what took place.
Booth urges the Court to remember that everyone has a right to a fair trial. The accused has a right to silence. And Zabow’s opinion might be opinion evidence, but that’s the case with any expert who is called in to make an opinion.
The State replies:
The State is still of the opinion that the essence of the evidence will eminate from hearsay evidence.
Appealing to the Court, the State says considerations must be made as to why this report wasn’t submitted earlier, and why this is only coming in now.
The State declares that it’s wrong to elevate the answer of the accused, retrieved by Warrant Officer Smith, to a fact. There might be many reasons why the accused could not remember at that time.
And so the State asks the Court to consider: Why now only do they want to lead that evidence, as a fact, three years later? Three years on, and everyone’s case is closed, and now the evidence is presented. There’s no good enough answer to that question.
In this criminal matter, the accused made a decision for three years not to share the evidence… And the State still maintains that the accused has established where the shoe is pinching.
The Court: What do you mean by that, but where is it pinching?
The State: That there’s no evidence from the accused. There’s a version, and there’s no counter-version.
The State continues that there is certain guidance for the Court to consider, and throughout the years certain rules have been established to assist the Court. The point is that nowhere could the State find case law where this reason for reopening a case has been given, this is a unique situation.
The Court agrees.
The failure to remember other situations is the important point that Zabow will present. Mthethwa’s memory loss goes further back than the 13th and 14th April 2013.
Regarding uniqueness – the facts are obviously different in every case. No case is exactly the same as another case, so the court must then apply it’s mind and come to their decision that way.
The Court responds that indeed both parties agree there is no case law, and that really it works both ways. The Court then announces they are in favor of the accused, and the application to reopen the case is granted.
Court is adjourned to Wednesday 30 November at 10:00, where Prof. Zabow will present his report.