“There is no reliable evidence that the accused committed any of the criminal preferred charges,” Makhubela said.
Acting judge Stuart Wilson asked Makhubela if it was the defence's contention that Malephane's evidence “was so incredible that it has to be rejected in its entirety”.
“Was his evidence so incredible, so poor that no reasonable person could accept any of it?” Wilson asked.
Makhubela argued that while the state had wrapped up its case with its witnesses, it had mainly relied on Malephane's evidence, which could not be relied upon to convict Shoba.
“His credibility is to such an extent that the court cannot find any reliance in whatever he says other than issues that are common cause. In relation to the contested issues, it will be a very precarious exercise to engage in and also make a finding and accept any utterances before court,” he said.
He said the cyber-related evidence regarding cellphone records was also not conclusive enough.
Makhubela argued that the court had throughout the trial been presented with a substandard case and was expected to make a verdict.
“We submit that suspicion cannot be elevated to evidence. It remains that and it is subject to speculation more than facts. The court is called upon to deal with the facts before it other than drawing inferences from what is circumstantially before it,” he said.
He said that taking Shoba to the witness stand before the state made a credible case for him to answer would be an irregularity on the part of the court.
Shoba is facing charges of murder, conspiracy to commit murder and defeating the ends of justice.
The state prosecutor told the court that Shoba had lied to the police even when he was not yet a suspect as he claimed not to know Malephane in order to distance himself from the crime, which he said was part of the current charge for obstruction of justice.
Wilson refused the discharge application, paving way for Shoba to finally take the stand.
The trial continues.
Judge dismisses application to discharge Shoba in Tshegofatso Pule murder trial
Image: Antonio Muchave
The defence counsel for the alleged mastermind in the Tshegofatso Pule murder trial has failed in its discharge application in which it argued that the state couldn't prove that Ntuthuko Shoba had orchestrated the killing.
Shoba's lawyer Adv Norman Makhubela had applied for his client's discharge in terms of section 174 of the Criminal Procedure Act. According to the section, at the close of the prosecution's case, if the court is of the opinion there is no evidence that the accused committed the offence, the accused may be discharged.
Shoba is alleged to have hired Muzikayise Malephane in June 2020 to kill his then pregnant girlfriend, Pule, for R70,000.
Malephane, who previously falsified his first statement to the police, is serving a 20-year sentence and has since turned state witness and testified against Shoba as the main witness.
Makhubela told the court that there had been no evidence presented to court that showed conclusively that Shoba had committed the crime.
This as Shoba was expected to finally take the stand after the state wrapped up its case and line-up of witnesses.
“There is no reliable evidence that the accused committed any of the criminal preferred charges,” Makhubela said.
Acting judge Stuart Wilson asked Makhubela if it was the defence's contention that Malephane's evidence “was so incredible that it has to be rejected in its entirety”.
“Was his evidence so incredible, so poor that no reasonable person could accept any of it?” Wilson asked.
Makhubela argued that while the state had wrapped up its case with its witnesses, it had mainly relied on Malephane's evidence, which could not be relied upon to convict Shoba.
“His credibility is to such an extent that the court cannot find any reliance in whatever he says other than issues that are common cause. In relation to the contested issues, it will be a very precarious exercise to engage in and also make a finding and accept any utterances before court,” he said.
He said the cyber-related evidence regarding cellphone records was also not conclusive enough.
Makhubela argued that the court had throughout the trial been presented with a substandard case and was expected to make a verdict.
“We submit that suspicion cannot be elevated to evidence. It remains that and it is subject to speculation more than facts. The court is called upon to deal with the facts before it other than drawing inferences from what is circumstantially before it,” he said.
He said that taking Shoba to the witness stand before the state made a credible case for him to answer would be an irregularity on the part of the court.
Shoba is facing charges of murder, conspiracy to commit murder and defeating the ends of justice.
The state prosecutor told the court that Shoba had lied to the police even when he was not yet a suspect as he claimed not to know Malephane in order to distance himself from the crime, which he said was part of the current charge for obstruction of justice.
Wilson refused the discharge application, paving way for Shoba to finally take the stand.
The trial continues.
Shoba deleted communication with Pule via SIM swap, court told
Shoba's defence pokes holes in police expert's evidence at Pule's murder trial
Witness says Shoba kept calling Pule's killer on day of her murder
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