As predicted yesterday, day 21 of the van Breda trial saw the state and the defence each hand up written ‘heads of argument’ to Judge Desai.

By the time court had adjourned yesterday, we were all quite confused about Advocate Botha’s seemingly nonchalant manner of handling the ‘trial within a trial’ – which of course came about at his instance. Only one witness was called, but the peak of the confusion happened when the very statement that he has trying to remove from the record was handed up. Do the defence have something up their sleeve? It was really anybody’s guess what may happen next.

Back to today’s proceedings.

During argument, we heard Advocate Botha say “We know what is coming, and that is what we take issue with, what the state did with the information they took from my client that day” – he had been stressing S v Orrie the importance of the inadmissibility of the statement.

The issue here is that it is not clear-cut about whether or not Henri was a witness or a suspect, and if he was a suspect, should the rights afforded by section 35 of the constitution be extended to him?

The conflicting decisions around this matter have been heightened, with the defence relying on reference to S v Orrie, and the state highlighting an appeal decision in another, S v Kahn which conflicts Orrie.

Referring to the defence’s argument, Judge Desai felt that Judge Bozalek went too far in S V Orrie, when he extended the constitutional pre-trial rights afforded to arrested, detained and accused persons in section 35 of the constitution. He was inclined to agree with the appeal decision in S v Kahn rather, where the court found that the rights of suspects are adequately catered by application of the well established judges rules.

I do not minimise the necessity to abide by the constitutional rights of suspects. Equally however, it is important not to hamstring the police in their investigation of crime”

 This compelling quote, by Judge Magid, clarifies the importance of Judge Desai’s decision and puts into perspective the importance of considering the matter on the facts, balancing the interests of the accused as well as that of the public while keeping our justice system in mind.



  1. The first issue in argument is, was the accused a suspect?
  2. Then, if he was a suspect, was he entitled to the rights afforded to him by section 35 of the Constituion?

It was pointed out by Advocate Galloway that the only evidence before the court on the issue of whether Henri was a suspect is that of Sgt. Malan.

Mr. du Toit could not counter Sgt. Malan’s version yesterday. In fact, Mr. du Toit’s evidence did not take the matter any further.

Sgt. Malan’s evidence was that Henri was a victim, taken to have his injuries noted. He was taken for questioning as the only witness that could provide information to the police. Dr. Albertse corroborated this version in so far as it related it Dr Albertse’s evidence in the criminal trial.

Advocate Galloway argued that Sgt. Malan was a credible witness. After a disparity in his statement regarding his trip to Blue Downs as jotted in his notebook, she declared that he hadn’t intentionally misled the court.

The state’s next course-of-action was to cover the law in the event that Judge Desai finds Henri was seen as a suspect, and in this regard she relied on the appeal decision of S v Kahn.

Advocate Galloway pointed out that this matter was different from S V Orrie by the fact that the police had knowledge of evidence which incriminated the accused, and as such it was reasonable to suspect him. Advocate Galloway argued that in this matter, at the time of taking Henri’s statement, there was no evidence that could have made Henri a suspect.

It was further noted that Henri was the only witness of a very serious crime. He was taken to have his injuries noted, taken to explain what happened to the police, had spent 4 hours with the police and then went home with his friends. Six hours transpired after he had given the statement, before Colonel Beneke and Sgt Adams arrived to take him for blood tests and only then indicated he was possibly a suspect in the crime.

Advocate Galloway’s conclusion was that Henri’s statement was taken at a time where he was seen to be a witness of the crime, and as such should be admitted as evidence. In closing, she pointed out that if the accused was seen to be a suspect at the time, section 35 of the Constitution is not applicable to suspects.

However, if Judge Desai finds it is, then the evidence in question is admissible, as admitting this evidence would not render the trial unfair nor would it be detrimental to the administration of justice.



First off, I think the defence weakened their argument by not placing Henri in the witness box.

The ‘trial within a trial’ continued with Advocate Botha submitting his heads of argument and proceeding to place his argument. Earlier on in submissions by the defence, Judge Desai pointed out that there was no evidence before the court to counter the version of Sgt. Malan who stated that Henri was not a suspect.

Advocate Botha then argued, using various references to case law, that the state carries the onus of proving that Henri was treated fairly – rather than the defence bearing the onus of proving that he was treated unfairly.

The court will have to give due consideration to this. The state could have lead evidence of Sgt. Adams or Colonel Beneke to corroborate the version of Sgt. Malan and chose not to, as the defence chose not to lead Henri, or even the friends who did deliver clothes and collect Henri from the detective’s office.

Advocate Botha then argued reasons why the evidence of Sgt. Malan should be rejected by putting the following on record:

  1. He lied about the manner in which Henri was dressed at the scene.
  2. He contradicted himself by saying that Henri was taken to Dr Albertse to document his injuries, when in fact, his notebook said he was taken for medical treatment and DNA analysis.
  3. He failed to disclose in his evidence in chief the fact that he had gone to Blue Downs, some 30-40 minutes away from the place Henri was being questioned.
  4. He maintained that he took the accused version down verbatim when in fact it was obvious that he had paraphrased Henri’s version.
  5. He stated Henri’s family brought him clothes when in fact it was friends who had done so.

He further stated that in any event the accused was viewed as a suspect, it was because:

  1. He was taken from the scene, bloodied, injured and dressed only in his underpants.
  2. He was taken to a district surgeon, not for medical treatment, but to record his injuries and take DNA analysis.
  3. He was then taken to the detectives offices where he was kept – dressed in only his underpants and in a communal office.
  4. He was not given anything to eat
  5. He was questioned for 2 and a half hours.
  6. His statement was taken.
  7. His family was refused access to him.
  8. Later that same evening he was taken to Dr. van Zyl to have his blood tested for alcohol and drugs.
  9. van Zyl said that evening the police told her he was the alleged accused in a triple homicide.

Advocate Botha concluded that the state had failed to show beyond reasonable doubt that Henri’s statement was not taken in a manner which violated his constitutional rights and in any event, Henri was seen to be a suspect – very shortly after the police had arrived at the scene that morning.

Judge Desai asked for an opportunity to consider argument on the matter and indicated that he would give his ruling on the matter tomorrow morning. He also noted, with both parties agreeing with him, that due to the nature of this application, as an interlocutory application in the criminal trial, he would be entitled to change his ruling prior to the end of the trial.

And so, we wait in eager anticipation of Judge Desai’s finding on the matter, a finding which no matter whose favor it may be in, will become a part of our criminal law and an important part of how judges will decide the issue in matters to come.

Follow me on Twitter for live, to-the-minute updates tomorrow at day 22 of the van Breda trial.


Photography K-Leigh Siebritz

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