By Estelle Ellis
The state has decided not to pursue the evidence of former Cape Times photographer Benny Gool and has closed its case in the Staggie lynching trial without asking the court to rule on his refusal to testify.
Counsel appearing for the four men on trial also closed their case without anyone being called to give evidence.
Judge John Foxcroft had been expected to rule on Tuesday on whether Gool had a "just excuse" for not coming to court to authenticate pictures he took the night Hard Livings gang leader Rashaad Staggie was beaten, shot and set alight by a mob of Pagad supporters near his Salt River home in 1996.
Sean Rosenberg and Susie Cowen, for Gool, argued in the Cape High Court yesterday that Gool had a just reason for not attending the trial.
On Monday the state struck an agreement with press photographer Christo Lotter of Die Burger to supply the
prosecuting authority with an affidavit authenticating a picture he took of the incident. The picture appeared on the front page of Die Burger the day after Staggie was killed.
Judge Foxcroft indicated that Lotter's affidavit would be acceptable.
"I can't force him to testify, we did away with the rack years ago," he said.
On trial are Pagad's national co-ordinator, Abdus-Salaam Ebrahim, Pagad security chief Salie Abader, Pagad member Moegsien Mohamed and a former amir (spiritual leader) of the organisation, Abdur Razaak Ebrahim.
A fifth accused in the case, Nadthmie Edries, a former security chief of Pagad, was released late last year after being discharged for lack of evidence.
Since the night of the incident, the state has been trying to obtain admissible photographic evidence of the lynching from various photographers and TV cameramen.
For pictures to be accepted as evidence, the photographer must come to court and attest that the pictures handed in were the pictures he or she had taken.
This is necessary to preserve the integrity of evidence and to prove the images have not been tampered with.
After Gool refused to accept a similar offer to supply the state with an affidavit, senior state advocate Jannie van Vuuren said on Monday that if Gool did not come to court he would ask for a warrant of arrest.
Rosenberg argued that Gool had a "just excuse" for not being at court.
In previous court cases, "just excuse" had been formulated to mean that a person has reasons that will make it "humanly intolerable" for him to testify.
On occasion, the Supreme Court of Appeal has decided that journalists should be called to testify only as "a last resort", after ruling that the right of press freedom should be accorded more weight than the interest the public has in crimes being solved.
Rosenberg said that in Gool's case there was an element of concern about his personal safety. He had had several threats since the fateful night.
It was clear from papers before court that several other journalists had been threatened as well.
"You cannot but conclude that the threat of violence has been demonstrated to be a real threat. An alarming number of witnesses have been eliminated. Where it was important enough, there was no hesitation in silencing them."
He added: "There was a significant failure of policing in this matter. Police intelligence gave comprehensive information (before the incident).
"The police were present at all relevant times. And now a recourse to the media forms the entire thrust of the prosecution."
Rosenberg said although it seemed unreasonable for Gool to refuse to sign an affidavit authenticating published pictures, the whole notion of his giving
evidence "cuts across the principle of press freedom".
Van Vuuren argued that Gool could advance no reason why he was unwilling to make an affidavit. "He has already attached his name to the published material and won several awards for it."
The trial was adjourned to February 25 for final arguments.