This morning the defence called their first and only witness, Andre du Toit, Henri’s maternal uncle, to the stand.

His summoning was in support of their application that the statement made by Henri on the afternoon of 27 January 2017 should not be admitted as evidence in the criminal trial due to it having been obtained in circumstances where the police officers taking the statement suspected Henri of committing the crime and did not warn him of this as well as his rights contained in section 35 of the constitution.

An emotional Mr du Toit told the court how he had been called to the scene of the crime that morning by the estate manager, who had Mr du Toit’s number saved as an emergency contact for the van Breda family.

It was clearly a traumatic moment as he recounted the moment he realized that his sister, her husband and his nephew were dead – Judge Desai offered him a moment to collect himself.

Henri’s uncle then told the court that the first thing Colonel Beneke had asked him when he had arrived on the scene that morning was “are there problems with the family?” – to which he replied that he hadn’t been aware of any and that he wasn’t sure what was meant by the question, but conceded in cross-examination by Advocate Galloway that it was possible the Colonel may have been referring to problems outside of the family with external persons.

We listened as he told the court how he went to Stellenbosch Mediclinic to see Marli, as this was the only hospital in Stellenbosch, but he was told he could not see her as she was being moved to Vergelegen Hospital (the same hospital Henri and James Reade-Jahn visited later that evening when Henri sought stitches and then taken back by Colonel Beneke for a blood test).

His next visit was to the Stellenbosch police station with the intent to see his nephew, but he told the court that the police would not let him see Henri. He further declared that had the police told him Henri was with the detectives who were questioning him as to what happened, he would have waited there for Henri.

He then called James Reade-Jahn’s mother, Christelle, close family friends of the van Breda’s, who invited Mr du Toit and his wife to the Reade-Jahn residence in Somerset West – near the hospital Marli was in.

Mr. du Toit, soon after hearing about the deaths of the van Breda family members, alerted the rest of his family as well as Martin’s brothers to the devastating news. Both him and his wife were physically the nearest family relatives.

Later that afternoon, Henri arrived at the house with James, his father and Alex, a close friend of Henri’s. Mr. du Toit then told the court that James’ father had presumably collected Henri from the police. Bianka and her family were also at the Reade-Jahn home.

We heard that Henri was reportedly extremely emotional when he first saw his uncle, hugging each other and crying.

That afternoon, Sonja du Toit, Mr. du Toit’s wife, had a look at Henri’s wounds and suggested he go for stitches as she thought the wounds were deep. The couple then left to go home as they had Sasha, the family dog, with them and wanted to take her home. Henri asked to remain with the Reade-Jahn family in order to be near to Marli.

Under cross-examination, notably the first time we have seen Advocate Galloway cross-examine a witness in the trial, Mr. du Toit conceded that James, James’ father, Alex and Bianka along with her family had known where Henri was and had visited the detectives offices to deliver clothes to Henri so it cannot be said that Henri was kept in isolation by the police and nobody knew where he was, just that Mr. du Toit didn’t know and accepted that this must be the case.

Advocate Galloway also put it to him that two doctors, both Dr. Albertse and Dr. van Zyl testified that stitches were not necessary, and if he disagreed? Mr. du Toit disagreed but admitted to having no medical training or qualification.

It was also asked by Advocate Galloway if Henri had drank a beer in the afternoon, but Mr. du Toit told the court he never saw Henri have a beer. Advocate Galloway thus concluded that he must have had the beer after the couple had left, despite her advising him to go get stitches before their departure.

My view on Henri’s uncle’s evidence is that it did not do much to advance the defence’s objection on admissibility.  His uncle seems to have a version of events which is understandably unclear considering the scene he arrived to that morning. The state made a good point of noting that friends of Henri knew where he was and were given access to him – in fact bringing him to their home when he had finished speaking to the police.

We cannot ignore the fact that the police did send him home after taking his statement.

Although Sgt. Malan may not have been the best witness, he seems to have genuinely thought that Henri was a victim and not a suspect, and this is ultimately what is the issue here. It doesn’t seem likely Judge Desai will conclude that Sgt. Malan thought Henri was a suspect.

Without Henri’s version of what happened that day, being before the court, I am doubtful that Judge Desai will find the statement to be inadmissible. He may apply less weight to the content based on the obvious paraphrasing but I don’t see him concluding whether Henri should have been read his rights, based on the actual evidence placed before the court in the ‘trial within a trial’.

The matter was postponed before lunch time today to allow both legal teams to prepare for their arguments tomorrow. Judge Desai requested that both the defence and the state hand up heads of argument and take off the remainder of day 20 to prepare as the matter was complex.

If you want to know more about what the law says in this type of application, read my article on a ‘trial within a trial’ otherwise follow me on Twitter for live, to-the-minute updates from the courtroom.

 

Photography K-Leigh Siebritz / HM Images

Article written by

Tracey Ann Stewart

Legal expert and counsel for Highbury Media