CAPE TOWN - There is no "sound rational basis" to grant Constantia businessman Rob Packham's application for leave to appeal the cancellation of his bail.
This was the argument by senior State prosecutor Susan Galloway in the Western Cape High Court on Tuesday.
Packham, who did not appear in court, and is currently being held at Pollsmoor prison, had his bail revoked in December last year because he allegedly contacted state witnesses in breach of his bail conditions.
The 57-year-old accused is facing charges of murder and defeating the ends of justice for the murder of his wife Gill Packham in February last year.
On the day she went missing, February 22, she left home for work at Springfield Convent School at about 7am. Her body was later found in the boot of a burnt out BMW near Diep River train station.
The State alleges that her husband used a blunt object to hit her on the head and, with the alleged intention of obstructing the course of justice, set her BMW on fire while her body was in it.
Judge Elizabeth Baartman cancelled his R75,000 bail on December 20 after the State alleged Packham had tried to make contact with his former mistress through a mutual friend.
He allegedly typed a letter that was delivered to the security desk at the complex the friend lived in. Furthermore, he allegedly sent text messages to the friend on October 17, in breach of his bail conditions.
Defence lawyer Ben Mathewson told the court on Tuesday that there was no evidence that the SMS was sent by Packham.
"He denies it. I must ask the court to consider the haphazard way the police investigated this aspect. It's hearsay on hearsay".
Mathewson said the state had not proved that his client was in breach of his bail conditions, and argued that another court may come to a different conclusion.
"The appeal is not doomed and there are grounds that justify this court to grant leave to appeal to another tribunal," he argued.
In his heads of arguments he said: "The State did not have factual proof in respect of the authorship of the communications alleged to have been in breach of bail conditions and accordingly relied on what was essentially speculation by its witnesses."
But Galloway disagreed, arguing that his actions, which included moving freely while being under house arrest, had warranted action by the court.
This had also not been the first time he had breached his bail conditions. Packham was initially granted R50,000 bail with conditions, after his arrest, but it was increased to R75,000 with more stringent conditions in September last year after he contacted State witnesses, including his mistress.
Galloway, in her heads of argument, said: "When the applicant's conduct preceding the order is considered it is argued that the applicant consistently and after having been warned not to do so, acted in intentional breach of the conditions of his bail. It is submitted that this Honourable Court was correct to find that 'it cannot be in the interests of justice to allow an accused to abuse his bail conditions with no consequences'."
Judge Baartman will deliver her ruling at 2pm on Wednesday.
Packham's trial has been set down to start on March 11.