The State wants the court to find murder-accused George Barkhuizen guilty merely on inference that he lied to police about his exact whereabouts when his wife was shot dead in the driveway.
This was the argument of Sita Kolbe SC, Barkhuizen's lawyer, at the South Gauteng High Court on Thursday during her closing arguments in the marathon trial.
Kolbe sought to convince the court that the state failed dismally to prove the charges against Barkhuizen.
Businessman Barkhuizen is accused of killing his wife Odette for insurance payouts in 2015.
She was shot as she drove out of Oakdene business premises.
Barkhuizen also faces counts of fraud, illegal possession of a firearm and unlawful possession of ammunition.
The fraud allegations were that he took out three separate life insurance policies worth R7.5m on behalf of Odette. The State alleged that he forged her signature and paid premiums.
Barkhuizen pleaded not guilty to all the charges, leaving the State to prove beyond reasonable doubt that he was guilty.
The State relied on circumstantial evidence to prove its case, as Barkhuizen was not caught red-handed committing the alleged crime and closed its case weeks ago.
Kolbe told the court that the “evidence” deposed against his client was not enough to prove the case against him.
She said the State wanted the guilty verdict drawn on the inference that Barkhuizen lied about his whereabouts when Odette was slain.
Kolbe drew the court’s attention to the fact that the prosecution team “deals extensively with how the accused, purportedly changed his version of his whereabouts as contained … in an attempt to show that he was untruthful”.
But the State can’t prove his guilt in this manner, she said.
“A lie by an accused can never prove a non-existent State’s case. It is respectfully submitted that the lengthy cross-examination on the accused’s inability to correctly recollect his exact movements during the course of the morning takes the matter nowhere,” Kolbe added.
“His inability to correctly recollect his exact movements or incorrect recollection can never form the basis of a conviction.”
Kolbe added that Barkhuizen stated from the outset that he was unsure of his exact movements on the day in question.
“One would have expected with respect that a person who wanted to create a false alibi, to have had the details of his movements worked out to the T.”
She said the evidence led by the State omitted critical video footage about Barkhuizen’s visits to locations, Café Bembom and Xavier Motors.
The Café Bembom “video footage would have confirmed the accused’s version that he was not on the crime scene when the deceased was shot,'' said Kolbe.
“The same applies to the video footage of Xavier Motors. It is a significant fact that neither the footage nor any note of the time of the accused’s visit to Xavier motors was disclosed.”
Another omission in the State’s evidence, said Kolbe, was the DNA.
“The failure by the State to disclose the outcome of the DNA evidence is of great significance. The possibility exists that DNA of an unknown person or of the perpetrator may have been found on the vehicle,” she said.
Judge Ramarumo Monama postponed the case to September 19 for judgment.