Bloemfontein - There is no proof that police sought to fabricate evidence in the prosecution of acquitted murder-accused Fred van Vyver, the Supreme Court of Appeal heard on Thursday.
“No conclusion can be drawn that fraud was intended,” said Kosie Olivier, legal counsel for the ministry of police.
The ministry was appealing against a Cape Town High Court decision that it had maliciously prosecuted Van der Vyver.
He had been charged with the 2005 murder of his girlfriend, Inge Lotz.
The court was hearing arguments on whether a case of malicious prosecution had been proved, and whether the police minister could be held liable for the damage caused to Van der Vyver.
Van der Vyver was found not guilty by Judge Deon van Zyl and two assessors after a trial that lasted nine months.
Referring to evidence regarding the actions of Constable Elton Swartz, who lifted fingerprints from Lotz's flat, Olivier said even if Swartz wanted to commit fraud, he could not do so on evidence.
“In all probability a mistake was made with the fingerprint handling.”
Olivier submitted Swartz could not have committed any fraud because he had to have information which only surfaced later in the case.
Olivier and Van der Vyver’s lawyer Dup du Bruyn spent much time debating on how the fingerprint evidence was handled in Van der Vyver's prosecution.
This debate was triggered by findings in the High Court in favour of the police on some aspects of Van der Vyver’s case which he had failed to prove.
Presiding Appeal Court Judge Fritz Brand was initially not happy with the resurfacing of this aspect, but the debate continued.
Du Bruyn submitted the fingerprint evidence had been fabricated and that there was never a possibility of a mistake.
“We do not understand the mistake, they (police) do not say.”
In August 2011, the Cape Town High Court ruled in favour of Van der Vyver after he sued the minister for R46 million in damages.
Judge Anton Veldhuizen, who presided in the damages action, said the decision to prosecute Van der Vyver was based on the opinion of an expert involved in the investigation. But this was “not worth the paper that it was written on”, the judge said.
Without this opinion, the prosecuting authorities would have realised there was no valid case against Van der Vyver, and would not have proceeded with the case.
He was satisfied, on a balance of probabilities, that the prosecution should never have taken place, and that the police ministry was liable for the damage caused to Van der Vyver.
On this aspect, Du Bruyn submitted it was proved the State had maliciously prosecuted the claimant.
Olivier said Van der Vyver had not managed to prove this malicious intent and asked that the appeal be upheld.
Judgment was reserved on Thursday. - Sapa