Port Elizabeth - In a compelling argument the defence lawyer representing two men accused of conspiring to kill Jayde Panayiotou ripped to shreds the strength of States case and asked for his clients to be acquitted on all charges in the Port Elizabeth High Court on Thursday.
Attorney Peter Daubermann who is representing Christopher Panayiotou's co-accused Sinethemba Nenembe and Zolani Sibeko brought an application in terms of Section 174 of the Criminal Procedure Act to have his clients acquitted on charges of conspiracy to commit murder, kidnapping, robbery with aggravating circumstances and murder.
This means at the close of the State's case, if the court is of the opinion that there is no evidence that the accused committed the offence referred to in the indictment, the court may return a verdict of not guilty.
Daubermann argued that there was just not enough direct evidence to convict the two men furthermore adding that the prosecution did not allege in the indictment that the Nenembe and Sibeko had reached an agreement to have the school teacher killed.
"There is no reference there that they reached an agreement to kidnap the deceased, or to murder the deceased. In fact there is no reference to an agreement at all, and even if it is accepted, there is no evidence of a conspiracy,
"The State's case is that they drove around and looked for the deceased, that's the State's case. On this alone the charges of conspiracy should be dismissed.The State's case is not that he [Sibeko] was present during the kidnapping and murder," said Daubermann.
Daubermann argued that the case against Nenembe and Sibeko was based solely on circumstantial evidence, and without the cell phone records the prosecution really had no case at all.
He argued that Nenembe and Sibeko at no stage admitted to ownership of these cell numbers so the State had to prove the location of various cell phone towers. Daubermann said a witness from MTN had conceded that he himself did not plot the towers and the job was rather passed on to radio engineers.
"What this means is that the State has failed to prove the location of the towers, and if it has failed to prove the location of the towers, it has failed to make its case," argued Daubermann.
Daubermann also argued that the prosecution failed to prove the range of each tower and instead contradictory evidence on tower ranges were placed before court.
Turning to evidence by Data Analyst, Thereza Botha, Dauberman argued that she was by no means an expert who could contest to the modus operandi of criminals.
"The evidence before court was that [Sibeko] was scouting in front of the deceased's residence.When I pointed out that the cellphone moved around, she conceded that she was wrong and agreed that there was no scouting on that day,"
"The fact that Vumazonke and Sibeko were in contact on 15th and 16th of April and the vehicle was in the vicinity of [Jayde's] residence it doesn't mean anything. It's a speculation theory and an unproved hypothesis," argued Daubermann.
He further argued that there was no evidence which pointed towards Nenembe and Sibeko having relationship with alleged hitman Sizwe Vumazonke, who is now deceased.
"Were they friends? Did they have family connections? Did they spend time together? That calls were made on certain dates around a certain time, is neither here nor there. Otherwise everyone who called Mr Vumazonke on a certain day should be arrested," said Daubermann.
He further argued that evidence before court did not place neither of the two men in the hired vehicle which was allegedly used to kidnap Jayde outside her Stelen Glen Complex during April 2015.
"There is no possibility a reasonable man, acting carefully, can convict [Nenembe and Sibeko]. Their names have hardly been mentioned in this trial.I have been sitting here twiddling my thumbs,"
State prosecutor Marius Stander opposed the application and asked Judge Chetty for time to prepare his response.
The trial continues on Friday.