Cape Town - Details of how a desperate, childless woman managed to pass off a kidnapped baby as her own – even pulling the wool over her husband’s eyes – are expected to emerge on Monday when the woman charged with the kidnapping of 3-day-old Zephany Nurse almost 20 years ago will testify in the Western Cape High Court.
The woman, who cannot be named, has also been charged with fraud and the contravention of the Children’s Act.
She pleaded not guilty to all three charges on Tuesday and handed the court a 35-page plea explanation, which lawyers have described as unusual.
They say the document goes into so much detail it risks her being subjected to rigorous cross-examination. All she needs to do is hold up and persuade Cape Judge President John Hlophe that her version could be true.
“It can be as far-fetched as the moon and back,” explained attorney Samantha Solomons, but all that the accused needs to do was convince the court that her version was reasonably, possibly true.
The onus was on the State to prove its case beyond reasonable doubt, she said.
For the accused in the kidnapping case, the challenge is that her plea is so detailed she has to remember a daunting amount of information when cross-examined.
“Plea explanations have to be brief. If you put anything in a plea explanation you have to stick to it. The less you say, the less you have to get into in the (witness) box,” Solomons said.
Milton de la Harpe, who is well versed in criminal law, echoed Solomons’s comments.
He cited as an example the case in which cricketer Makhaya Ntini was acquitted of rape on appeal after his counsel set out to prove the case the State had presented was not watertight.
De la Harpe explained Ntini’s version was accepted as reasonably possibly true and doubt was cast over the State’s case.
Attorney Shihaam Parker agreed a detailed plea explanation was risky, but added it could have the opposite effect if the accused doesn’t waiver under cross-examination.
“Her story must just be plausible,” she said.
William Booth, who chairs the criminal committee of the Cape Law Society, pointed out the court in the Zephany Nurse case was dealing with circumstantial evidence.
He said Shireen Piet, who identified the accused in an ID parade, only put the accused closer to the scene and did not spot her physically snatching the child. In any event, the ID parade must be viewed with caution because Piet saw a photograph of the accused beforehand.
The court was also likely to consider the likelihood of her remembering the face of someone she met 19 years ago, he said.
At the end of the day she merely has to prove that her version was reasonably, possibly true – even if the court accepts all the evidence of the State witnesses, Booth said.
“She could be an excellent witness.”
The accused’s version emerged on Tuesday when her attorney, Reaz Khan, handed the court her plea explanation.
It painted a picture of a woman in an abusive relationship in which she fell pregnant.
Her first-born died after six weeks and she had several failed pregnancies.
In December 1996, after yet another miscarriage, she met a woman named Sylvia while waiting for test results at Tygerberg Hospital. She could not recall the woman’s surname.
Sylvia told her and others in the waiting area that she could help with fertility problems and that, if the treatment was unsuccessful, she could assist with adoption because she knew many women who had unplanned pregnancies, and it would cost R3 000.
The accused did not tell her husband about the miscarriage because Sylvia promised she would fall pregnant again soon.
However, the plan failed and she decided to adopt.
Sylvia told her she would have to fill out forms which would be forwarded to a court in her area.
In April 1997 – at the time of Zephany’s disappearance – Sylvia called to tell her a young woman was not interested in keeping her baby and asked to meet at the Wynberg train station.
When she arrived there, however, an unknown woman handed her a baby and told her to go to the Retreat hospital and call Sylvia there. Sylvia told her the baby was hers and the documentation would be sorted out later.
“I sat with the baby on a bench at the hospital looking at the baby and had no idea what to do. I recall noticing a pin still attached to the umbilical cord. I thought about abandoning the baby at the hospital. I thought I did not tell my family about the miscarriage, so I decided I will tell them it was my baby,” she said.
The accused said she called her sister to asked a woman she knew as Aunty Mary to fetch her, saying she had given birth to a girl.
The woman, Mary Lewis, denied the claim when she testified this week.
In the plea she says two weeks later she called Sylvia again and asked to meet the biological mother, also requesting the clinic card, adoption papers and birth certificate.
They met in town and Sylvia gave her documents to sign.
A man was also sent to her home one evening with documents for her husband to sign, and she explained it was to register their daughter.
“I previously felt uneasy due to the lack of paperwork for the adoption. However, I felt as no one wanted her returned, and because the parents did not want to keep her, I accepted her as my daughter,” she said.
The accused received a birth certificate in the post about six years later.
“I had on occasions thought about telling (my husband) and Zephany about the adoption, but they had a very close relationship and I did not want to destroy it. As we grew closer it became harder to tell them the truth. I was also concerned that the truth might affect her education,” she said.
She said it was not in her nature to kidnap a child and she would never intentionally harm a child.
When she was told the child could be Zephany Nurse she did not believe it because, in her mind, her daughter’s biological mother did not want her.
The trial continues on Monday.