The witness cannot be named due to legal reasons.
The Modimolle Regional Court has granted the state’s application to cross-examine its own witness after he changed his testimony in court on the Phala Phala matter.
The witness cannot be named due to legal reasons.
Proceedings resumed in court on Wednesday, where the alleged mastermind, Imanuwela David, and Froliana Joseph, along with her brother, Ndilinasho David Joseph, are on trial.
The Namibian nationals face charges of housebreaking, theft and conspiracy to commit housebreaking with intent to steal. David faces an additional charge of money laundering.
The case relates to the theft of $580 000, which had been stashed in a couch at Phala Phala game farm in Bela-Bela on 9 February 2020.
Phala Phala witness
The state filed applications based on sections 189 and 190 of the Criminal Procedure Act, which seek to declare a witness a recalcitrant and hostile, respectively.
The defence opposed the applications.
“The state submitted to say the witness made a statement to the police, and he has now deviated from that statement. In his evidence, the witness has indicated that ‘I was threatened’, and the whole thing happened prior to this statement being made. Now, a determination has to be made as to whether this statement is admissible in evidence,” argued the defence.
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“He has deviated from the statement he made to the police, considering the evidence he provided and asking ourselves a question: was he hostile, and can he be declared a hostile witness? When he was giving evidence, there was not a time when he refused to answer a question that was raised.”
However, state prosecutor Nkhetheni Munyai said the state could rely on either section to support its applications.
“It’s a question of conflating issues. The two sections differ and serve different purposes. The state can rely on either or both of them. I don’t think the submissions made are supportive of the witness not being declared hostile,” said Munyai.
‘Some of the evidence may be true or false’
The court granted the state’s section 190 application and denied the section 189 motion.
“I wouldn’t want to prejudice the state under the circumstances. I’m of the view that they may be entitled to cross-examine their witness if they are of the opinion that he is deviating from the statement which he made to the police,” said Magistrate Peter Manthate.
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“Which evidence is accepted at this point is not for the court to determine at this particular stage of the proceedings. Some of the evidence may be true, some may be false, but the totality of the evidence will be considered at the end of the trial when the court is to give a judgment. For that reason, the application by the state is granted.”
‘I was scared’
This application allowed the state to cross-examine the witness, and Munyai asked him why he had changed his evidence in court.
“As I have indicated before, some of the things, as they happened a long time ago, I recall, but others, I do not recall. I am the one who made the statement, but when I made it, I was scared because different people came who indicated that they were looking for accused number one. When they told me they were going to take a statement, I complied,” said the witness.
The witness is a driver who allegedly transported the alleged robbers from Limpopo. In his statement to the police, he claimed to have been given three stacks of money, which were $10 000 each. However, he told the court he only received R7 000.
How he came to transport the accused was also in question due to the different versions he provided.
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