The state’s case against the eight VIP protection officers allegedly linked to an assault on the N1 highway, would be weakened should the person who captured the incident on video refuse to testify.
The case is before the Randburg magistrate’s court and this week the state requested more time to finalise outstanding issues in its investigation. In previous appearances, the state had submitted the footage of the incident as evidence in line with the Electronic Communications and Transactions Act, but the defence challenged this after the court was told the person who took the video was scared to come forward.
Lawyer and director of Dubazana Attorney’s, Nthabiseng Dubazana said until the state was able to get the original video, its case is weakened.
Dubazana said:
“The state would have to invoke Section 205 to confiscate the phone or whatever devise was used to record the incident before returning the phone to the owner.”
“ To be able to prove that the extracted video is in the original footage, the state would have to obtain a 212 report, which [video analysis] expert will authenticate it and then issues a certificate that confirms that it is authentic and was not tempered with,” she said .
Dubazana said the expert may be called in to attest to the authenticity of the footage.
“ If they cannot trace the original video the defence could argue that the video could have been manipulated.
“The state might have to provisionally withdraw the matter until they can find the person who has the original video and if that person does not want to testify it’s fine, they can provide the original video [to the state],” said Dubazana.
The eight men, provisionally face 12 charges including pointing of firearm, malicious damage to property and assault with the intent to cause grievous bodily harm, briefly appeared at the Randburg magistrate’s court on Wednesday.
The group was arrested in July after a video depicting men, believed to be Deputy President’s Paul Mashatile’s VIP detail, attacking a motorist and his passengers near Fourways, went viral on social media. The defence argued that because the person who shot the video was unknown, it raised questions about the video’s integrity and authenticity.
Melusi Xulu from Donda Attorneys said while the discrediting of the video by defence would not be a complete downfall of the case, the person who captured it was crucial in authenticating it.
“The person who took the video would have to take the stand even after the video is obtained to confirm that he/she took the video. If this is not possible, the state will have a problem in authenticating the video.
“Not only is the person who took the video in possession of the original footage, but also an eyewitness. If the witness is scared to take the stand, they are likely to be scared to hand over their phone as well because during court proceedings the state would have to say who the phone belongs to.
“The crux of criminal law is that the state must prove its case beyond reasonable doubt, so everything has to be in the open. If you are just going to retrieve information from a phone and it's not known who the phone belongs to and yet you are trying to prove authenticity, but you are concealing the owner, the defence will take it on.”
This, however, would not mean the case is lost. Xulu said the victims along with a passenger who was travelling with them would still be good witnesses for the state’s case.
“There are two or three guys that were in the car along with a lady who was a witness. You also have J88 evidence which is a medical document to prove where the victims were injured as a result of the assault.
“So the case is not that weak, but it would have been strengthened by the video.”
sibiyan@sowetan.co.za
VIP assault case hinges on video witness' testimony
Court may rely on Section 205 to confiscate phone from owner and extract footage
Image: Veli Nhlapo
The state’s case against the eight VIP protection officers allegedly linked to an assault on the N1 highway, would be weakened should the person who captured the incident on video refuse to testify.
The case is before the Randburg magistrate’s court and this week the state requested more time to finalise outstanding issues in its investigation. In previous appearances, the state had submitted the footage of the incident as evidence in line with the Electronic Communications and Transactions Act, but the defence challenged this after the court was told the person who took the video was scared to come forward.
Lawyer and director of Dubazana Attorney’s, Nthabiseng Dubazana said until the state was able to get the original video, its case is weakened.
Dubazana said:
“The state would have to invoke Section 205 to confiscate the phone or whatever devise was used to record the incident before returning the phone to the owner.”
“ To be able to prove that the extracted video is in the original footage, the state would have to obtain a 212 report, which [video analysis] expert will authenticate it and then issues a certificate that confirms that it is authentic and was not tempered with,” she said .
Dubazana said the expert may be called in to attest to the authenticity of the footage.
“ If they cannot trace the original video the defence could argue that the video could have been manipulated.
“The state might have to provisionally withdraw the matter until they can find the person who has the original video and if that person does not want to testify it’s fine, they can provide the original video [to the state],” said Dubazana.
The eight men, provisionally face 12 charges including pointing of firearm, malicious damage to property and assault with the intent to cause grievous bodily harm, briefly appeared at the Randburg magistrate’s court on Wednesday.
The group was arrested in July after a video depicting men, believed to be Deputy President’s Paul Mashatile’s VIP detail, attacking a motorist and his passengers near Fourways, went viral on social media. The defence argued that because the person who shot the video was unknown, it raised questions about the video’s integrity and authenticity.
Melusi Xulu from Donda Attorneys said while the discrediting of the video by defence would not be a complete downfall of the case, the person who captured it was crucial in authenticating it.
“The person who took the video would have to take the stand even after the video is obtained to confirm that he/she took the video. If this is not possible, the state will have a problem in authenticating the video.
“Not only is the person who took the video in possession of the original footage, but also an eyewitness. If the witness is scared to take the stand, they are likely to be scared to hand over their phone as well because during court proceedings the state would have to say who the phone belongs to.
“The crux of criminal law is that the state must prove its case beyond reasonable doubt, so everything has to be in the open. If you are just going to retrieve information from a phone and it's not known who the phone belongs to and yet you are trying to prove authenticity, but you are concealing the owner, the defence will take it on.”
This, however, would not mean the case is lost. Xulu said the victims along with a passenger who was travelling with them would still be good witnesses for the state’s case.
“There are two or three guys that were in the car along with a lady who was a witness. You also have J88 evidence which is a medical document to prove where the victims were injured as a result of the assault.
“So the case is not that weak, but it would have been strengthened by the video.”
sibiyan@sowetan.co.za
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