Johannesburg - The National Prosecuting Authority (NPA) believes it has a solid case against the man who has been accused of driving negligently and causing the road accident that ultimately led to the death of Durban adventurer, Andy Carrie.
Velile Hlongwa was allegedly driving the vehicle that collided with the motorbike Carrie was riding in Berea in December 2016.
But Hlongwa’s legal team is now pushing for his acquittal after claiming in court that investigations into the matter were compromised.
Advocate Paul Jorgensen, representing Hlongwa, took umbrage at how an articled clerk, who is a witness in the matter, claimed he “found the smoking gun” and how the clerk was apparently involved in the investigation on behalf of police and the prosecution team.
Jorgensen told Durban Regional Court Magistrate Prithi Bhoda Khedun last week that the clerk’s impartiality and independence as a witness was in doubt because he interviewed and took statements from witnesses.
He found it “puzzling” that although the NPA became aware of the clerk’s involvement through a letter he sent to the NPA, they chose to “hide” the issue instead of conducting an investigation.
Hlongwa faces culpable homicide, reckless and negligent driving, and drunk driving charges.
It was alleged that Hlongwa was driving at an excessive speed in Essenwood Road and veered into oncoming traffic, before colliding with Carrie.
The car Hlongwa was said to be driving apparently landed on its side.
Attorney Michael Friedman, who was driving behind Carrie and was reportedly unable to stop in time, crashed into the undercarriage of the car. Hlongwa told the court he was not the driver of the car.
Friedman is one of the witnesses, led by State prosecutor Nonjabulo Mkhulisi, who has given evidence.
During his cross-examination of Friedman, Jorgensen disclosed the contents of a letter written by the clerk to KZN’s “director of public prosecutions” (DPP). The clerk, who lived in the vicinity of the collision and was drawn to the scene by the sound of the crash, worked at Friedman’s law firm.
Regarding his involvement, the clerk claimed to have had “intimate knowledge of the investigation and the manner in which it was conducted”.
The clerk indicated that he was acting under the instruction of his employer (Friedman).
He wrote: “I have also been acting with the sanction of both the investigating officer and the prosecutor as an assistant to the State. Principally, I have been interviewing and submitting witness statements for various individuals who are to be examined in the trial. This has been done unsupervised, and with the blessing of the investigating officer and prosecutor.”
He claimed to have interviewed, and taken statements from, a witness who confirmed Carrie’s “sobriety” and another who he regarded as the “smoking gun” that would pinpoint Hlongwa as the driver.
However, he was informed by the investigating officer that the former prosecutor was not prepared to include those witnesses in the trial.
In the responding letter to the regional court’s chief prosecutor, the DPP’s office indicated that the clerk’s letter was concerning, especially since he was involved in the investigation process. The chief prosecutor was asked to urgently provide a response to the DPP’s office.
Friedman distanced himself from the letter and the work the clerk claimed he had done. He said he would have prevented the clerk from writing the letter had he known about it in advance.
Jorgensen said the clerk targeted witnesses who could “nullify the version of the accused”.
He reminded the court that from the start of the trial he had spoken about the lack of an “objective investigation” in the matter, and based on the clerk’s letter, it was unlikely a “fair trial” could be held.
Jorgensen made an application that thestatements gathered by the clerk from witnesses be ruled inadmissible.
“What was more puzzling was that the highest prosecution office (DPP) knew what was happening, through the letter, and didn’t investigate but, in fact, hid it. This is an abuse of a right to a fair trial by the lack of involvement from the police and prosecution,” said Jorgensen.
He believed Hlongwa could be acquitted. Khedun is due to make a ruling on Jorgensen’s application when the matter resumes in March.
Kholiswa Mdhluli, NPA’s spokesperson said: “The NPA does not investigate but it has a duty to decide whether or not to prosecute based on the evidence as is contained in the docket. If the prosecution honestly believed that there had been malice in the manner in which the evidence was obtained, the prosecution would not have continued with.
The matter is subjudice and no comments will be made in regards to the merits or arguments that have been raised in court. The court will consider all the facts of the matter that have been placed before it, and make a finding on whether or not there is sufficient evidence or insufficient evidence. We cannot preempt any court findings at this stage.”